Five bills, thousands of pages of healthcare “reform” and not one mention of tort reform. Democrats get a glazed look in their eye if anyone mentions it. No no, don’t look at that, just look at the big bad insurance companies.
Prosecutors charge that a group of top Las Vegas plaintiffs lawyers and doctors, with the 64-year-old Awand at its center, conspired in an audacious fraud. The participants appeared to act independently but instead colluded. Unwitting accident victims were recruited as plaintiffs and then persuaded to undergo serious, sometimes needless, surgeries. The procedures, in turn, helped inflate the size of personal-injury claims. The result was multimillion-dollar insurance settlements, even for dubious cases, and lucrative fees for the doctors, the lawyers, and, of course, Howard Awand.The alleged scheme began in 1999 and lasted for at least six years, prosecutors charge. Business and court records and local press reports suggest that the group — which numbered about 30 — colluded in hundreds of suits that yielded hundreds of millions in settlements. According to government evidence, the group coordinated their testimony as expert witnesses, lied under oath, protected one another from malpractice lawsuits — even after the surgeries left a few patients paralyzed — and ate away at the plaintiffs’ settlement money with kickbacks disguised as contingency fees. [...]
The insurance industry battles some $80 billion in fraud annually, from staged auto accidents to phantom patients and nonexistent clinics billing for procedures that never happen.
By 2002, insurance defense lawyers were so concerned they held an unusual meeting. More than a dozen attorneys for competing insurers met to compare notes. Some who had subpoenaed Awand described getting threatening calls from his associates warning that their business would dry up if they didn’t back down, William Turner of Farmers Insurance recalls. The lawyers, he says, recounted tales of strange behavior or even intimidation. Expert witnesses, for example, suddenly and inexplicably changed their testimony; some doctors who refused to cooperate with Awand had been threatened with frivolous malpractice lawsuits. By meeting’s end, the lawyers felt certain they were facing something bigger and more sinister than garden-variety fraud.
(h/t Walter Olsen)
Comment by Bender Bending Rodriguez on 8/21 @ 8:50 am #
What? Fraud and organized crime? In Las Vegas? Is nothing holy?!?!
Comment by Salt Lick on 8/21 @ 8:54 am #
Five bills, thousands of pages of healthcare “reform” and not one mention of tort reform. Democrats get a glazed look in their eye if anyone mentions it.
Heh. At the town hall I attended last Tuesday, a lot of the angry crowd insisted this be addressed. There was a wild little guy in one of the side aisles who kept yelling “Boucher’s [Congressman Rick Boucher] in bed with the trial lawyers!!! Him and John Edwards sleep in the same bed!!!” The mountain folks here have long looked the other way or smiled knowingly at whispers of Boucher’s being gay. Homophobic hicks, you know.
Comment by serr8d on 8/21 @ 9:04 am #
Who needs tort reform? Our tortured health care system needs tort reform! Those greedy ambulance-chasing lawyers who attack their betters (doctors) (let’s see a lawyer help maintain a person’s health; no, their purpose is to accrue cash to their wallets) should be asked to pay out of their own pockets (or their client’s pockets) for any legal fees their victims have to pay to defend themselves, if they lose their hyperinflated lawsuit. Now, it’s cheaper for doctors to settle out of court, given the cost of fighting a legal battle, even if said doctors did no harm.
Before any such health leech-lawsuit goes forward, it should undergo review by a panel of doctors, to determine it’s merit. Texas has this policy in place, and is doctor-friendly.
It’s better to be doctor-friendly than lawyer-friendly, sorry! in advance to the lawyers who are aghast at such a remark. You should’ve studied and accomplished something more helpful and less leechful, is all I can say.
Comment by BJTexs on 8/21 @ 9:14 am #
If you’ll pardon the expression, tort reform is the 500 lb. jackass sitting in the corner and laughing at “reform.”
Of course, the Trial Lawyers of America have been top five givers to the Democratic party for many years, along with other tort advocacy groups. If there is a bigger example of the political hypocrisy of lawmakers (and some Republicans are included on that list) I haven’t yet seen it.
Comment by BJTexs on 8/21 @ 9:15 am #
Oops, sorry! Linky.
Comment by Roland THTG on 8/21 @ 9:34 am #
In a government of the lawyers, by the lawyers, for the lawyers, you expect tort reform?
HAHAHAHAHA
Git Rill
Comment by SarahW on 8/21 @ 9:44 am #
This doesn’t call for tort-reform, it calls for discipline reform and criminal charges.
Comment by Ric Locke on 8/21 @ 10:04 am #
Part of this is growing pains.
When I joined the Navy in 1969, the Chief who taught our class in first aid told us not to be concerned about receiving most of our medical care from corpsmen rather than doctors; a corpsman then, he said, knew more about medicine that was true than a doctor had in 1950. That’s about right, and it’s even more true today. I loved my family doctor when I was a kid, but if I were bad hurt, having a heart attack, or something like that, I’d much rather see a trained EMS tech than a reincarnation of Percy Reitz, MD.
Our ancestors wouldn’t have sued doctors because they knew the doctors were making it up as they went along, giving palliatives and depending on magic (the Law of Similarity, mostly). Bleeding? Cigars for asthmatics? Arsenic therapy? Give me a break… but today, medicine is less an art than it is a highly technical job. There was a science fiction story about twenty years ago in which the protag gets in a horrid accident and has to be pieced back together out of parts, including spares. Afterward he mentions to the surgeon that he has some psychological problems attendant on the accident, and the medico says, “Well, you’ll have to see a doctor about that. I’m just a mechanic.”
The transition isn’t complete, though, and it won’t be for some considerable time. Not least among the barriers is the doctors’ resistance to being considered “just mechanics”. It’s a bit paradoxical, isn’t it? If the doctor actually knows how to fix problems and does so, he’s “just a mechanic” and gets less respect than he did in the days when he was essentially a shaman. But that’s the way it works across the board. The village smith used to be a really important character, central to everyone’s lives. Nowadays he’s Joe the Welder, with a dually pickup truck and the social prestige of a ditchdigger.
So yes, the docs get part of the blame for the malpractice “crisis”, largely from trying to defend the mystique that gives them their social standing against the encroachment of the “just a mechanic” attitude. The biggest problem facing medicine right now is the sheer volume of knowledge available. No doctor can remember it all — nobody could; there’s just too damn much of it — but they’ve been enormously resistant to the very concept of computerizing it, and the result is that getting the right treatment is something of a crapshoot, especially for uncommon ailments. If the doctor you go to doesn’t know, or doesn’t remember, the specific fact(s) pertaining to your condition, you likely won’t get the right treatment.
So, yeah, some tort reform is needed, but it won’t solve the problem; most of the reforms I’ve seen suggested boil down to preserving the doctors’ shaman status, and all that’ll do is encourage bad medicine. What I would suggest is a two-pronged strategy: “Loser pays” for lawsuits (a good policy across the board, I think) and a doubling or better of the size of medical schools — attack the supply side. You’d get enough lazy people into medicine to promote better automation and database management for medical care, which is badly needed.
Regards,
Ric
Comment by Danger on 8/21 @ 11:20 am #
Ric,
Things have changed somewhat since your Navy days. When I visit the Flight doc know they use a computer diagnosis program that utilizes patient symptoms, medical history and matching medical conditions.
Computerized records are a double-eged sword though; as military records have been subjected to numerous episodes of careless disclosure in the past. My wife works for a Doctor that refuses to go to online records because of just that risk.
Comment by Salt Lick on 8/21 @ 11:46 am #
So, yeah, some tort reform is needed, but it won’t solve the problem; most of the reforms I’ve seen suggested boil down to preserving the doctors’ shaman status, and all that’ll do is encourage bad medicine.
It probably speaks to my ignorance, Ric, but I couldn’t follow your reasoning that most tort reforms will lead to bad medicine. Are you saying the threat of lawsuits keeps doctors on their toes, makes them more careful? Their insurance covers them from financial ruin via lawsuit now, and all the proposed tort reforms I’ve seen retain the “nuclear” penalty of losing their license to practice.
I’ve seen you comment over at Belmont Club, so maybe you’d be interested in this post by one of wretchard’s doctor commenters. It doesn’t address the “medicine will get worse” issue, but shows some impressive gains for productivity and cost.
Cheers,
Comment by Dave in SoCal on 8/21 @ 11:51 am #
In states such as California, which enacted limits on jury awards for malpractice in 1975, healthcare costs are between 5% and 9% less than other states because physicians in California and other states with similar reforms do not practice defensive medicine.
As I have noted in the past, my wife is an ER doc here in CA. I disagree with this conclusion. The amount of money being paid out might decrease with caps in place, but it does absolutely nothing to reduce the amount of defensive medicine practiced. Doctors don’t fear the amount sought even awarded of a lawsuit, they worried about being sued in the first place. This is because a lawsuit against them, whether it has any merit or not, is a black mark on their record. So they’re going to do everything they need to in order to insure that when (and it IS when, not if) the eventual lawsuit happens, they have as much ammunition on their side to help them win.
Comment by Ric Locke on 8/21 @ 11:55 am #
Danger,
Yes, I knew that — as usual, the military is ahead of the civilian world in that respect. Very few, if any, civilian docs use anything resembling that diagnosis program, and that’s part of what I’m complaining about.
The system you’re talking about was developed, IIRC, at Hopkins under contract to AFMED, based on work originally done in the Seventies at U of Wisconsin and extended by several people in the time since. It’s moderately limited — it isn’t a general diagnostic program, being tailored to the problems likely to be encountered in relatively healthy flight crews. A truly general program would be much, much bigger and more complex. One thing it really needs, and doesn’t have now, is a learning heuristic that would let the doc feed actual discoveries back to extend its knowledge base.
The original work was rejected en toto and with sneers by the medical community, with some reason as it was extremely limited and tended to give wrong answers — it was, after all, restricted by computer capabilities of the time. The problem is Mark Twain’s burned cat — she won’t sit on another hot stove lid, but won’t sit on a cold one, either. Civilian doctors tend to remember the original work, rather than the later improvements, and discard the very idea. Maybe one way to overcome that resistance would be to turn the program you encountered over to civil medical examiners and require them to use it for, e.g., airline pilots. The “just a mechanic” objection obtains there, though, and the docs will resist on that basis.
Medical records are the property of the patient, full stop. They should be kept on an EEPROM “memory stick” (EEPROM so it doesn’t need a battery or power to preserve the info) and encrypted, with the diagnosis system programmed not to copy them except a block-copy (with encryption intact) to provide a backup. If the patient has the password, the system has everything it needs. Stuff that might be needed by emergency techs (such as drug allergies and insulin dependence) could be kept unencrypted without a name attached. It wouldn’t be perfect, but it’d be better than what we have.
Regards,
Ric
Comment by Ric Locke on 8/21 @ 12:05 pm #
Salt Lick, I didn’t say tort reforms would lead to bad medicine; good or bad medicine is up to the doctors, who are almost always highly conscientious and responsible. What I said was that the tort reforms I’ve seen — including the Texas one, which I very much like — tend to support the social status (I called it “shaman status”) of the doctors, which I don’t regard as a primary aim of reform.
Regards,
Ric
Comment by Dave in SoCal on 8/21 @ 12:06 pm #
Ric,
Regarding your “shaman” post, I think the problem is not so much that doctors want to be treated as miracle workers as much as it it that people expect them to be one. Especially once there is a bad outcome with a patient. People in general expect doctors to be able to fix everything, but the simple truth is that sometimes a doc can do everything correct and by the book and still things go bad. “Shit happens” is very much applicable to modern medicine today, whether people want to believe it or not. And they usually don’t. So when their loved one dies, even if the doc did everything that could reasonably be expected of them (I refer back to your accurate “doctors can’t know EVERYTHING” statement above), people are still looking for someone, anyone, to blame. And once they talk to a few friends or family members (“Harry died? Sounds like the doctor screwed up. Better go talk to a lawyer”) they start to convince themselves that somebody MUST have messed up, otherwise their loved one would still be around. And even in cases where the person doesn’t really blame the doc for what happened, once a lawyer convinces them that they’re not really going after the doctor, they’re really going after the “deep pockets” of the insurance company for some justified compensation (because SOMEONE has to be responsible, right?), it’s still going to be the doctor’s record and medical license on the line just the same regardless of whether they pay a single penny out of pocket.
Comment by Dave in SoCal on 8/21 @ 12:15 pm #
Also, I don’t disagree that there are many doctors out there VERY concerned about their social status and prestige, there are just as many (if not more) who put in long hours for average pay (this is true in many medical subspecialties, especially when you factor $100-200K of student loan debt) for the reward of getting to make a positive difference in people’s lives, and in some cases, being the reason that a patient goes home to their family instead of to the morgue. I know, I’ve met them and seen them in action.
Comment by Dave in SoCal on 8/21 @ 12:21 pm #
BTW, regarding this “miracle worker” expectation, what drives my wife absolutely crazy at times is how often she encounters mistakes and screwups in the world and the people making them don’t seem too concerned. As she says “why is it that everyone else can screwup with little or no repercussions, but I’M expected to be 100% perfect at all times in MY job?”.
Comment by Danger on 8/21 @ 12:31 pm #
Ric,
You got any investment tips. I thought I was bringing some insight and you return the favor with tenfold interest;)
Comment by Ric Locke on 8/21 @ 12:34 pm #
Dave, I don’t disagree with what you say. My point, to the extent I have one that a decent barber couldn’t minimize, is that it’s an application of Ric’s Rule #1: It ain’t that simple.
I once lost a longtime friend over the issue. We were watching TV together, and the newsreader was talking about a doc who lost a malpractice suit. My friend opined that the loss was a tragedy — the guy had helped a lot of people over his career, and ought to be credited on that basis. My response was that if the guy’s a butcher, no amount of painting kids’ scratched knees with Mercurochrome® could make up for the pain and suffering he caused. I was shown the door and told not to come back. It didn’t change my opinion in any way, except that it was the genesis of the “shaman” sneer — because that’s exactly the attitude being expressed: that the doc exists on a higher plane than us mere mortals, and should be allowed to do as he pleases on the basis of trust. I only believe in one Higher Plane, and people on it don’t, as a rule, practice medicine in Texas.
Tort reform is necessary, but one of the big reasons it’s needed is that the malpractice mess that’s grown up over the last half-century or so has obscured the point I’m trying to make. We need a mechanism for booting bad docs out of the system, and the AMA ain’t it — one of the main reasons malpractice tort got out of hand is that the docs didn’t (and still don’t!) police their own bivouac. Forgetting that in the enthusiasm for tort reform will just take us back to the Fifties and set the whole process off again.
Regards,
Ric
Comment by cranky-d PhD on 8/21 @ 12:40 pm #
Expert systems are still in their infancy, really. The have gotten better, but there’s still a long way to go. I think they would make a great tool to assist the diagnostician since they can “remember” much more than a person can. I would imagine they are also better at spotting major mistakes.
For instance, my father specifically told the people in the hospital that he was allergic to penicillin, it was on his chart, and they still gave him a penicillin derivative anyway. Then they wondered why they couldn’t get him off the ventilator. The did finally figure it out, but it took them way too long.
Comment by cranky-d PhD on 8/21 @ 12:45 pm #
I’m with Ric on the shaman thing. In fact, if they were willing to do a medicine dance or something, and it helped, I’d be down with it.
Having seen the system intimately from both sides, they are mechanics, and the fact is many of them are so full of themselves that it keeps them from being better mechanics. There is a human factor to treatment that is very important as well, but that human factor does not outweigh the mechanic factor.
Comment by Bill R on 8/21 @ 12:48 pm #
The whole legal system has serous problems. It’s too costly, too arbitrary, too unpredicitable. It relies on junk science. Plainly guilty people are turned loose on absurd technicalities and innocent people are locked up on laughable evidence.
Hey, here’s an idea. In Washington we have a few hundred lawyers trying to re-engineer the entire 2.4 trillion dolar medical industry in their spare time over a month or two.
Why not commission a few hundred doctors to re-engineer the entire legal system in their spare time over a month or two? Makes about as much sense. More, in my opinion.
Comment by DarthRove on 8/21 @ 1:07 pm #
Hey Dave in SoCal
It’s apparent that we are hearing the same stuff at home (my wife is an ER doc too), so I was getting a small chuckle seeing some of my dinner conversations in your posts.
I can understand Ric’s point regarding needing a mechanism for booting bad docs, at least one that’s better than the one we have now. I can remember waiting to present a design for an auto-attendant to the State Medical Board of Ohio (this is years before Mrs. Dr. DarthRove). I arrived about a half-hour early and got to sit in on the board meeting, which involved a disciplinary hearing for a GP who had been doing a few of his nubile young patients. It was clear that the doc knew at least two of the board members, because he appealed to them as “witnesses of his overall character”. These two board members then talked about the doc’s “standing in the community”, “valuable member”, yada yada, and basically slapped his wrist. He was told that if this happened again and they found out about it, that it could result in stronger action (as if there could be weaker action) like actually suspending his license for six months. I remember being disgusted by this doctor’s behavior, and more disgusted that the body set in place to allow people to practice medicine didn’t uphold higher standards.
That said, I do think that more and more of that “old boy” network is passing away, literally and figuratively, as newer doctors enter the field, especially in newer specialties like emergency medicine that don’t have as much inbred support. I know that my wife’s group does work to evaluate their docs and keep the better ones in the ED zones that see more critical stuff while the others get the colds, flus, “I have searing belly pain that only narcotics will fix, but can I get some Mickey D brought in while I wait”. I have a feeling that Ric would support a strong professional review board over a governmental body as a “boot the bad guys” system, but there are practices that do all they can to do the right thing and keep doctors where they are best suited.
Comment by BJTexs on 8/21 @ 1:37 pm #
It seems that we are faced with this two headed hydra that works at cross purposes.
So I’ll preface a question: Taking at face value the following: The US health system deals with far more medical malpractice suits than any other industrialized country. The US health system also has a less than efficient mechanism for removing consistently bad doctors.
How do other industrialized countries handle this issue from both a tort cost savings and an “insure the doctor’s not a dolt” perspective? What are the consequences of what they do (or don’t do?)
Separate for Ric: What works and doesn’t work in the Texas system, which is constantly held up as the “gold standard” of Tort reform?
Comment by Ric Locke on 8/21 @ 1:44 pm #
I would support anything that looked like it might work. None of the things we’ve tried so far does.
The AMA is a guild, and it has the same features and bugs as any other guild system. In theory, members of the guild are in the business and therefore knowledgeable about the busines, so they are qualified to pass judgement on entrants and violators of Teh Rulez. In practice, what you get is the Politician Problem.
Good managers are busy running their enterprises and don’t run for office; the ones who do run for office are, in general, the ones who either can’t make it in private work or have “fire in the belly” ambitions. The result is that politicians are guaranteed to come from the lower-ability demographics. Same with guild members, docs included. A really good doctor is ‘way too busy to spend time dealing with guild affairs, so the ones who do feel they have the time to sit on Boards of Inquiry and the like tend strongly to be the ones who are less good as doctors or who find empire-building and self-aggrandizement more important than medical practice.
Notice the “tend” there. It’s an important qualifier. There are loads of people who apply themselves conscientiously to the duty; the system survives at all because of them. But you get a secondary effect of the Politician Problem: the good ones tend to be more than a little contemptuous of the time-servers and empire-builders and don’t want to associate with them, which adds more negative incentive for them to serve as Guild managers.
Having the Government do it just adds another layer. You still have to have knowledgeable people (well, in theory; the EPA does well, or at least a lot, without). A good doctor can and does make a good living, serves a lot of people with good medical care, or some mixture of both depending on individual attitude and personality; why would such a person accept the restrictions (on income and work both) inherent in becoming a Government functionary? You need the best people to be passing judgement. The Guild system selects against having the best people involved, and the Government Inspector system does so even more strongly.
Regards,
Ric
Comment by Dave in SoCal on 8/21 @ 2:21 pm #
Darth:
“I have searing belly pain that only narcotics will fix, but can I get some Mickey D brought in while I wait”
LMAO. I wish I had a nickel for every time my wife has had one of THESE cases. She has a reliable method to see whether these people really do have the stated pain: During the physical exam, she makes it a point to press her stethoscope fairly hard in the “pain” area several times while drawing their attention to other parts of the body to distract them from what she’s doing. It’s amazing how many times people with “searing” pain don’t even notice this contact that should have them climbing the walls.
I suspect you’re right about the dinnertime conversations. I’m willing to bet that we could finish many of each others’ stories at this point.
I agree with you about the “old boy network” dying off, ditto with the evaluation within the group. Docs in my wife’s group can be quite pointed about how some of them are performing.
Ric:
Keep in mind that the AMA is really only representative of a small percentage of doc out there. That’s why Obama saying that “the AMA supports my health plan so therefore doctors support me” is such a ridiculous statement. MD’s are better represented (and accredited) by organizations devoted to their specialty (i.e. for emergency medicine, the American College of Emergency Physicians or ACEP). It is at this level that policing of “bad” doctors would be far more effective.
Comment by Silver Whistle on 8/21 @ 2:41 pm #
On tort reform, Charles Krauthammer had these thoughts earlier this month:
It sounds a little too logical to me, and I can’t see the ambulance chasers going for it.
Comment by Rick on 8/21 @ 3:00 pm #
“You’d get enough lazy people into medicine to promote better automation and database management for medical care, which is badly needed.”
Sounds like Obama could’ve been a transformative physician, rather than a shiftless lawyer.
Cordially…
Comment by Ric Locke on 8/21 @ 3:47 pm #
Rick,
There is a considerable and very significant difference between “lazy” and “shif’less”.
For an illustration of the difference, you should look up a couple of (very old) Robert A. Heinlein short stories: “–We Also Walk Dogs” and “The Man Who Was Too Lazy to Fail”.
Regards,
Ric
Comment by RD on 8/21 @ 5:03 pm #
As with many other things, the GOP had a chance to deal with tort reform when they had the votes. They didn’t, and it’s fairly obvious why they didn’t.
Are tea-baggers generally in favor of tort reform? I’ll have to check their eyes the next time I encounter one.
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[...] “Prosecutors say a group of top lawyers and doctors conspired to collect millions in inflated damages by pushing accident victims into dubious surgery.” Riveting, detail-filled account of the alleged involvement of numerous Nevada lawyers and as many as 20 doctors in what prosecutors say was boldly and systematically organized misconduct, with even some sectors of the judiciary in the state at best cowed by the scheme’s managers. An elegant touch: physicians who played ball are said to have been assured protection from malpractice suits from many feared attorneys, while those not in on the scheme appear in some cases to have been at extra peril. This looks to be one of the year’s most important ventures into investigative journalism on the underside of litigation — don’t even think of missing it [Katherine Eban, Fortune, Aug. 19] More: discussed by Darleen Click and commenters, Protein Wisdom. [...]
Comment by Rusty on 8/22 @ 6:13 am #
RD has no arguements so RD can be ignored.
Comment by SDN on 8/22 @ 7:43 am #
Oh, you mean the Republicans had 60 guaranteed votes so the trial lawyer bribed Copperheads couldn’t filibuster? When and on what planet was that, Real Dumb?
Comment by wildman on 8/22 @ 11:03 am #
Poetic justice would be for doctors not to treat trial lawyers
Comment by Abe Froman on 8/22 @ 11:07 am #
RD is just a little boy rooting on his favorite team.
Comment by Mikey NTH on 8/22 @ 11:39 am #
Of course, Congress really can’t directly do tort reform except in federal courts. State courts are out of its jurisdiction. They would have to do something, offer something to the states or threaten to remove something, if each state didn’t enact tort reform.
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wisconsin criminal record…
I agree with what you wrote here at Usable Security ” Blog Archive ” A VM for voting machines: making peace …. Good points there….