Monday, February 03, 2003

An interesting email I just received contained this point-counter-point, from John Day, a leading Tennessee trial lawyer, and J. Mack Worthington, President of the Medical Society of Chattanooga and Hamilton County:


John Day Commentary

Arthur Tucker Jr. had an enlarged
prostate gland.

Arthur's doctors recommended that
he undergo a procedure in which his prostate would be treated with heat to
reduce its size.

During the procedure, doctors
inserted a heating element near Arthur's prostate gland. At some point, the
heating element slipped out of its original position, though it remained in his
body. Understandably, Arthur complained of excruciating pain to the nurse, who
responded, "Hang in there and be tough." His doctor left the room for
an hour, while the heating element caused severe internal burns. A month later,
his penis had to be amputated.

Big insurance companies want to
limit drastically Arthur's ability to sue for malpractice. Under the plan pushed
upon lawmakers by those companies, Arthur's recovery would be limited to only
"economic losses." That means Arthur would not have to pay for the
botched procedure, and would receive his lost wages during his recovery period.

But Arthur's most devastating
losses are noneconomic. He must face a lifetime of disfigurement, distress and
anguish. Under the plan pushed by big insurance companies, however, his
compensation for "pain and suffering" would be limited to $250,000.
Had Arthur been in his reproductive prime, his inability to conceive children,
not to mention his inability to enjoy relations with his spouse — called
noneconomic damages — would not be taken into account at all.

Under the scheme of so-called tort
"reforms," the value of Arthur's life is derived from an economic
bottom line — arbitrary, government-imposed caps set at the request of
insurers — while the pain, anguish and disfigurement suffered by Arthur is
worth practically nothing.

The big insurance companies' plan
does nothing to address medical malpractice. Instead, arbitrary caps penalize
the most severely injured patients with the strongest claims, such as Arthur

The Institute of Medicine reported
in 1999 that as many as 98,000 people die each year because of preventable
medical errors. That's 268 people per day — over four school buses full of
people, a number that does not include those who die from neglect in nursing
homes or as a result of clerical errors, or the people who are "just"
brain-injured, paralyzed or otherwise seriously injured. If all the children in
one school bus died in a tragic accident, it would be front-page news across
America for weeks. But avoidable deaths in hospitals are buried because they
occur in silence — one at time — in cities across the country.

Fortunately for all of us, the
majority of doctors in Tennessee are professional and dedicated to the health of
their patients. Unfortunately, doctors have been put on the front lines of the
so-called medical malpractice "reform" battle. Doctors have have been
made the unwitting accomplices of insurers who have driven health from the
health care profession — replaced by an obsession with the bottom line. A
review of financial information from Tennessee's physicianowned medical
malpractice insurance company, State Volunteer Mutual Insurance Co., provides us
with facts about its profitability and the so-called insurance
"crisis." From 1987-2001, the company paid its doctor-owners $230
million in dividends, including $82.5 million from 1997-2001. The company's
publications state that it pays dividends only when the "funds are not
needed to pay claims or strengthen the company financially." After paying
out dividends, SVMIC now announces that it is going to raise its rates. During
its last effort to restrict patients' rights in the mid-1980s, SVMIC admitted
that it was "impossible" to predict the impact on liability insurance
rates if the Legislature capped damages. It also refused to promise that it
would lower rates. The Legislature rejected SVMIC's efforts. Afterward, from
1987-1991, SVMIC paid its doctors a whopping $48.5 million in dividends. Despite
payment of large dividends, the company's net worth increased almost 100 percent
to $63.7 million during the same period. SVMIC had after-tax profits of over $29
million, an after-tax rate of return on insurance premiums written of almost 14
percent. Had the company not paid dividends, its after-tax rate of return would
have been over 35 percent of the premiums it charged its doctors. Seventeen
years later, the facts are the same. Tennessee doesn't face the same medical
malpractice "crisis" faced by other states, because of SVMIC's
financial success.

For the minority of health care
professionals who commit malpractice, Arthur Tucker's case must remind us that
medical malpractice is a significant problem that should not be trivialized or
discounted. Tennessee courts have the authority to throw out frivolous lawsuits
upon motion for summary judgment. Tennessee judges have the powers of remittitur.
That means that if a jury renders a verdict that is outside the realm of
reasonableness, the judge can step in and reduce extravagant awards in
individual cases.

The victims of medical malpractice
have the right to trial by jury. The jury should be permitted to determine the
value of the loss to the victim or the victim's family caused by the wrong.
Victims such as Arthur Tucker should be allowed to hire the lawyer of their
choice — just like the big insurance companies. And, when the Arthur Tuckers
win their cases, they should be paid what the jury and judge say they should.

Before Tennessee patients agree to
compromise their rights, they are entitled to know the answers to these
questions: How much will my doctor's insurance rates decrease if my legal rights
are restricted? How much will office visits and hospital charges be reduced?
Exactly how does restricting the rights of patients with meritorious cases
prevent the filing of frivolous cases? Why are big insurance companies the only
businesses (other than baseball) exempt from anti-trust laws?

John Day is a founding partner of
the law firm of Branham & Day in Nashville and a member of the Tennessee
Trial Lawyers Association.


Dr. J. Mack Worthington Commentary

Tort reform is the "hot button
" issue in health care today. The debate ranges from how much is enough for
"pain and suffering" to how much is too much for lawyers to take as a
percentage of jury awards. The real truth of the matter is that neither of these
things matter as much as what the current system is doing and will do to impede
access to care. It's really all about access.

Our medical care system is about to
go into a state of paralysis regarding access to medical care for a number of
reasons. The reasons include the declining number of quality applicants to
medical school; a nursing shortage of crisis proportions; administrative hassles
such as the Health Insurance Portability and Accountability Act regulations that
impede practicing physicians from concentrating on the job at hand — good,
quality patient care; poor physician-payer organization relations; and the lack
of tort reform in an increasingly litigious society.

Without reasoned, intelligent
responses to these and other issues, the American medical care system, the best
in the world, will implode.

President Bush, in an address
before the Pennsylvania Medical Society, said that tort reform is overdue.
"For the sake of affordable and accessible health care in America, we must
have a limit on what they call noneconomic damages — I propose a cap of
$250,000 ... Excessive jury awards will continue to drive up insurance costs,
will put good doctors out of business, will run them out of your community…"

The president also said, "A
lot of times these lawyers will sue everybody in sight in order to try to get
something. In cases where more than one person is responsible for a patient's
injuries, we need to assign blame fairly. There are too many lawsuits filed
against doctors and hospitals without merit."

How do we find ourselves in such a

James C. Mohr, writing in the
Journal of the American Medical Association, says advancing medical innovation,
education, practice standards, licensing laws, liability insurance, lawyer
contingency fees and lay juries have all contributed to the growth of medical
malpractice suits. According to the Physician Insurers Association of America,
between 1935 and 1975, 80 percent of all medical malpractice suits were filed in
the last five years of that period.

The first "crisis" in
insurance availability occurred in 1975, when many commercial liability
insurance carriers left the market. In response, state medical societies,
including the Tennessee Medical Association, helped form doctor owned carriers.
Between 1975 and 1985, the average jury award tripled, along with huge increases
in the number of claims filed and the amounts of paid losses. PIAA reports that
approximately one of every six practicing physicians is sued each year.
High-risk specialties — obstetrics, orthopedics, trauma surgery, neurosurgery
— average one claim for each physician every 2.5 years. For the decade
1991-2001, claims costing $1 million and up increased nearly four-fold and for
2001, the average indemnity (loss) payment was $310,000, up 60 percent in the
last five years.

The reality is that 70 percent of
these lawsuits are found to be without merit. The average cost to defend
frivolous suits is $22, 967. If a trial is required, the average defense cost
(win or lose) is $85,718. The average lawsuit takes 3.5 years to adjudicate.

The transaction costs —
administrative costs, defense costs, plaintiff attorney contingency fees —
consume 58 cents of every dollar in tort costs. Lawrence B. Lindsey, former
White House economic adviser, says, "… our society often views
transaction costs that are one-tenth or less of what the tort process charges as
being too high."

Last summer, the American Medical
Association said a medical liability crisis already existed in West Virginia,
Pennsylvania, New Jersey, Florida, Mississippi, Nevada, Oregon, Washington,
Georgia, New York, Ohio and Te x as. Can Tennessee be far behind?

According to the AMA, 30 other
states— including Tennessee —show "problem signs" associated with
a medical liability crisis. These "problem signs" include changes in
Tennessee's legal system, unpredictable jury awards, inconsistent awards and
rising liability insurance premiums. In 2001 in Tennessee, $94.5 million was
awarded in trials involving personal injury and death. In 2000, by comparison,
$42.9 million was awarded in such cases. Twentynine cases in 2001 drew in excess
of $500,000. In 2000, only four cases drew these amounts.

Doctors are disappearing from
communities on a regular basis. Sen. Bill Frist, a physician, notes,
"Injured patients have the right to sue for medical malpractice, but trial
lawyers do not have the right to force innocent doctors from their livelihoods
and throw our health care system into crisis." A crisis in liability
insurance coverage equals a crisis in access to care. Physicians and hospitals
are forced to choose between paying increasingly higher liability insurance
premiums (which are a barrier to having to pay huge judgment amounts in the
event of a successful lawsuit), or limit the amounts and types of services they
provide to those who require medical care. Tort reform is one necessary response
to the survival of health care that we have known and come to depend upon.

J. Mack Worthington, M.D., is
president of the Medical Society of Chattanooga and Hamilton County

1 comment:

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