Monday, September 28, 2009

Enlighten the people…

On September 22, 2009, the Huffington Post featured a timely article by Anthony Tarricone, President of the American Association for Justice. In his piece, Mr. Tarricone warns about the “bargain” for tort reform being played out in Congress:

“As part of a ‘grand bargain’ to create a bipartisan health care bill, some have said tort reform should be included.”

Although some in Congress are attempting to include tort reform into the health bill, that inclusion would not be an enhancement for the American people; rather, it would be a disaster for civil rights, health and safety.

As Mr. Tarricone points out and, most certainly, Congress is aware:

  • "98,000 people dead every year from preventable medical errors, at a cost of $29 billion. (Institute of Medicine).
  • To put this into perspective, 98,000 deaths is like two 737s crashing every day for a whole year.
  • Countless more are seriously injured with astronomical costs.
  • The Congressional Budget Office and Government Accountability Office have looked at tort reform multiple times, and said it will save practically no money.
  • They also found no evidence of so-called 'defensive medicine,' finding that doctors run more tests because of the fee-for-service structure, or because of the benefits extra tests have on patient care.
  • Additionally, a 2006 study from Harvard found that 97% of cases were meritorious, totally debunking the idea that frivolous lawsuits plague our courts.
  • And while 46 states have enacted some kind of tort reform, health care costs have continued to skyrocket, while injured patients or their families often can't seek justice."

    So, why would a Congressional leader support tort reform, and why would they want it attached to the health bill? And, if it becomes so, will health reform end up sanctioning 98,000 deaths a year?

    For the welfare of us all, we need to know where our elected officials stand on this issue.



  1. What we know in Michigan is that drug industry immunity--in the form of our full shield law--has only cost the state, and its taxpayers, enormously more money.

    The cost of caring for injured people and their survivors is removed from manufacturers and put on the state as a whole. One could view it as a kind of Accountability Socialism--let the government do it if it save your own butt.

  2. As I watch the healthcare "debate," I become increasingly disgusted with both major parties. Obama has caved; the rest are hopeless; Baucus is Turkish Taffy; corruption is all-pervasive.

    Anyone interested in reviving the Bullmoose? Fiscal discipline AND genuine reform, with no Bullsh*t.

  3. I heard the news today, oh boy
    They’re working on a heath plan for the middle-class…

  4. Half a loaf is better than no loaf at all.

    Of course, I'm biased.

  5. As will probably surprise no one, the Senate Finance Committee has officially rejected the "public option". So reports the NYT:

    Only halfababy is enthused.

  6. Fantastic!

    Another victory for Wealthcare Reform!!

    Power to the Powerful!!!

    Right on, Folks!

  7. The link below is to a NEJM panel discussion on Healthcare reform and cost control moderated by Dr. Gawande. For those who don't know, Dr. Gawande authored an influential article on the unsustainability of our present healthcare system for The New Yorker magazine.
    The panel discussion focuses on cost control and the current reform proposals.

    The video is approxiamately 20 minutes.

  8. Halfababy, I hope your half a loaf doesn’t become toast.

  9. Thanks for the link, James.

    I also appreciated the one you gave to us on the German system. As you may have seen, it was mentioned on tonight's ABC News.

    But do you think there is any chance we would regulate the industry even remotely like Germany (or Switzerland)?

    My guess is that the public option would be much less threatening to the industry than that kind of regulation. But I assume that they, too, don't imagine such regulation would ever happen.

  10. Thanks JiM

    However, I must admit I do not recall providing a link to the German healthcare system. If I did then I need to organize a system of my posts to Pharmalittle just for the sake of avoiding redundancy.

    My initial focus on the Healthcare debate centered on the Canadian system and how it differed from the USA. As you probably know, Canada has a Single-payer system but a recent Canadian Court case has opened up the for-profit insurance industry. Since Canada maintains a highly regulatory environment, it is not likely that there will be a mad rush to the for-profit institutions.

    As to Germany, I had to do a very quick investigation to expand my knowledge on their system. I realize that the German system is not funded directly by taxes but in essence, it is as the government mandates an 8% across the board fee by both employers and employees for access to their system.

    As stated above this coverage is mandatory and an individual can only opt out if they earn more than 72K per year, at which time they can purchase insurance from a for-profit insurance company. Very few Germans opt out of the system.

    It should also be noted that because of lower wages German premiums are generally lower than those here in the States. It is my opinion that the 8% government fee will be called a tax so the prospect of implementing the German system in the States is remote at best.

    In addition, the German system of healthcare is generally run by non-profit organizations and it is highly unlikely that American legislators would remove the profit incentive from medical health insurance.

    However, my assumption could be wrong as the present proposal calls for a much greater contribution from Middle Class families who are at 300% of the Federal Poverty level. I think given the choice of 8% as opposed to 13% most Americans would choose the 8% model. The problem here is that in Germany, the 8% deduction is across the board, while under the Baucus proposal individuals and families at 100% of the FPL will only contribute 3% of their earnings to healthcare premiums. The Liberal side of the aisle will call this measure a regressive tax.

    The German system also seems to minimize the extent of out-of-pocket expenses, while the Baucus proposal limits out-of-pocket expenses to one-half of the federal limits placed on Health Saving Accounts or approximately 6K for a family of four.

    Finally, the examples I have read explain the German benefits but they do not explain how Germany has managed to contain costs. The closest corollary I can find in the USA is decisions by Medicare to reduce the reimbursement rates on certain procedures. The result of the reductions has been that care has been shifted to other more profitable medical areas.

    Medicare also receives a great deal of pushback from the AMA lobby. Medicare recently proposed an 8% reduction in reimbursement rates across the board but that initiative has been scrapped, I assume probably from pressure mounted by the AMA.

    On final point and that goes to the cause célèbre of the Republican Party and that is Malpractice Reform. It is widely understood by those who have been following the debate that the cost of malpractice has a minimal affect on the total cost of healthcare in this country.

    Dave Leonhardt a writer for the New York Time recently ran an article on the cost of malpractice to the healthcare industry and while I disagree with his recommendations, there was an interesting item noted in his piece. He noted only 2 to 3 percent of the individuals who suffer harm due to negligent practices ever file a lawsuit.

    I would be open to reform if it was to increase access for those individuals to seek redress for the harm suffered.

  11. The Swiss system from today's NY Times.

  12. Thanks again, James. Yes, indeed, re: the 2-3% number. Do you have any thoughts on what we would need to bring in at least some of the other 97%?

    As one who has been in that situation (re: a family member) of not bringing suit--even though this particular case was about as egregious such
    cases get--my guess would be that the following play a role:

    --When a drug injury or malpractice causes death, getting involved in a lawsuit feels like prolonging the grieving process, which is already eating up much of one's energy.

    --In a strange way, it may even feel like "capitalizing" on the loss, even if it happened as a result of concealed information or similar.

    --There is the general stigma of "suing"--not what "nice people" do....which goes, of course, with the demonization of trial lawyers.

    --the effort to find a lawyer and go through the whole process may well feel overwhelming.

    --If the issue is medical malpractice, there may be the fear of some sort of retribution by other docs, and being known as a "dangerous patient," and thus raise the fear of jeopardizing relationships with all the providers on whom one relies. Better not to "rock the boat."

    For those and other such reasons, it does not surprise me that most people "suck it up"

  13. JiM

    You raise some valid points on why people do not sue and I am not sure any specific proposal will increase the participation rate of injured parties if the rationale behind their decision not to pursue financial redress is based upon the above line of reasoning.

    Therefore, in my view the first point would be to remove the stigma attached to bringing a lawsuit. Although I cannot substantiate this, I believe a large percentage of the population are in agreement with your assertion that most lawsuits against the medical profession are based upon greed on the part of the injured party or their family member and as such are more willing to "suck it up."
    Through a revision of the current system, this bias can be eliminated.
    While I have not given the idea extensive thought or study I would propose setting up a special process for the purpose of hearing malpractice claims.
    The process would be established along the lines of the Federal Government's system on the handling of EEO claims.
    As you may know government employees who believe they are the victims of discrimination can bring a lawsuit against their Federal employer. However, claims are capped at 300K. The 300K figure does not include awards for back pay or front pay so the final figure can easily surpass 300k but it does remove the multi-million dollar claims from the equation.
    The claims are adjudicated before an Administrative Law Judge (ALJ) and the ALJ’s decision is reviewable by the EEOC. If the ALJ was to rule against the complaining party and the decision is upheld by the EEOC the individual would then receive a Right to Sue letter.
    I believe a similar situation can be established along these lines and that as part of Healthcare Reform all patients would receive information on their right to pursue an action in a Patient's Court.
    As in the Federal Government system they would have a limited time to bring the action but the statutes of Limitation would be premised upon the fact as to when the individual first became aware or reasonably should have been aware that the cause of their injury was based upon a doctor's negligence or malfeasance. This section would probably need some safeguards to avoid too many dismissals based upon an overly generous interpretation of the Statutes of Limitations for the benefit of practicing physicians.
    The Federal system also allows for the recovery of legal fees if an individual prevails in their case against the Federal Government. This is similar to the present system and would need some revision.
    I would propose a public advocate be made available to injured patients, their families, and that prior to commencing an action the Public Advocate thoroughly reviews the injured party’s case and advises them on the merits of flaws in their case.
    An ALJ would be the appointed hearing officer and a review of the decision would be by a board modeled after the EEOC. The Board's composition should include both medical professionals well versed in best medical practices and patients’ rights advocates.
    In the event that the ALJ and the Medical Hearing Board rule against a specific physician this physician would be required to post the ALJ decision in a prominent location in their medical facility.
    I realize the above is just a jumping off point and does not answer all of your concerns but it can easily be improved upon. It may also have to be modified to the State level but I think the Federal guidelines should apply even at the State level. At the very least, I think my proposal would increase the number of patients who seek financial redress for harm suffered.

  14. Hi James,

    Great posts, as usual.

    Just going back up to the German system, I frankly think its being invoked as a talking point against the public option,etc.. Those opposed say, "Look, the German system is all based on private companies and costs have been controlled."

    Of course, they do not say all that you do--about the relevant taxes, extent of regulation, etc.--none of which would fly in the U.S.

    So it is what I'll call a "Cloud Man" (as opposed to a Straw Man)--a little fluff you bring into your argument with no intent of actually doing anything with it.

    Don't know enough about ALJ's to respond to your more recent post, although it is an intriguing model. My overall sense is that the bias _against_ suing is so strong, and has been internalized by so many people, that it would take cultural as well as institutional changes to alter it signficantly. But perhaps such alternative remedies can find a way around.

  15. JiM

    Thanks for the compliment and kudos to you, David, Former, Dianne and Laura on earning well deserved recognition for your site.
    Keep up the good work.

  16. Thanks, James. There are obviously more readers than contributors. Some of our guests who return often:

    You might be surprised at who some of our readers are. Nice to have "friends" in, well, lots of places.

  17. JiM

    The article from the NY Times on the Swiss system explains that costs are controlled by the government. Since the government in the Swiss system, and presumably the German system, imposes reimbursement rates for medical procedures the supposedly private systems are much more akin to a Single Payer system.
    In addition, both the Swiss and German health insurance private companies are primarily non-profit organizations.
    In the States we have a mixture of non-profit and for-profit health insurance organizations but I believe the model runs more towards the for-profit institutions.
    Based upon comparisons between the American model vis-a-vis the Swiss and German models your "cloud man" argument is on point.


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