House Passs Bill to Cap Noneconomic Damages.

[RustedFox]

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Any of our legal eagles or Capitol Hill Bills want to comment?

House passes medical malpractice bill

 

[Vandalia]

It would likely run into a 10th Amendment challenge from the states. If it passes, it will be interesting for the courts, since conservatives generally favor states rights and put more emphasis on the 10th Amendment. (See the current healthcare debate and the desire to give states flexibility.) Liberals favor the right to sue with no damage limits but also like federal power. IF it passes, it would be a case with a good chance for the Supreme Court to take since it involves an issue that is getting some attention. It would be interesting how they would vote on it because as I said it puts both liberals and conservatives in a situation where their most basic beliefs are in conflict.

However, the more I see the more I have a feeling that big malpractice awards might just be our best friend. That is what keeps hospitals in many cases from hiring specialty trained physicians over mid-levels or lesser trained physicians. Without that concern, it makes the lower cost labor source more attractive. It is all about the bottom line, if you think they care about "quality of care" you are insane. They are also not generally really smart at looking at efficiency and more indirect costs. If they think they can hire some guy with "state minimum training" for half the cost with no downside, they will do that. Or more likely, a guy with a Family Med residency for 75% of the cost.

I also think the elimination of "joint and several" liability is bad for physicians - particularly EM physicians - and probably comes from the hospital lobby. Now, even if it is a big award, EM physicians are generally in the clear because attorneys will go after the "deep pockets" of the hospital when it comes time to collect. If it is based on degree of fault, that puts a much bigger target on the physician, and if they don't have any other choice they will go after the physician's assets. Now it almost never happens because it is not worth the effort, and there are more fruitful targets. So that is a very bad provision for us.

There is one fundamental rule of medical economics: Things never work out the way you expect. What you often think is you best friend ends up your worst nightmare (see Anesthesiologists and CRNA's.) I just have a bad "spidey sense."

 

[VA Hopeful Dr]

It would likely run into a 10th Amendment challenge from the states. If it passes, it will be interesting for the courts, since conservatives generally favor states rights and put more emphasis on the 10th Amendment. (See the current healthcare debate and the desire to give states flexibility.) Liberals favor the right to sue with no damage limits but also like federal power. IF it passes, it would be a case with a good chance for the Supreme Court to take since it involves an issue that is getting some attention. It would be interesting how they would vote on it because as I said it puts both liberals and conservatives in a situation where their most basic beliefs are in conflict.

However, the more I see the more I have a feeling that big malpractice awards might just be our best friend. That is what keeps hospitals in many cases from hiring specialty trained physicians over mid-levels or lesser trained physicians. Without that concern, it makes the lower cost labor source more attractive. It is all about the bottom line, if you think they care about "quality of care" you are insane. They are also not generally really smart at looking at efficiency and more indirect costs. If they think they can hire some guy with "state minimum training" for half the cost with no downside, they will do that. Or more likely, a guy with a Family Med residency for 75% of the cost.

I also think the elimination of "joint and several" liability is bad for physicians - particularly EM physicians - and probably comes from the hospital lobby. Now, even if it is a big award, EM physicians are generally in the clear because attorneys will go after the "deep pockets" of the hospital when it comes time to collect. If it is based on degree of fault, that puts a much bigger target on the physician, and if they don't have any other choice they will go after the physician's assets. Now it almost never happens because it is not worth the effort, and there are more fruitful targets. So that is a very bad provision for us.

There is one fundamental rule of medical economics: Things never work out the way you expect. What you often think is you best friend ends up your worst nightmare (see Anesthesiologists and CRNA's.) I just have a bad "spidey sense."

I'm not EM but if there is a big shift towards lower cost providers, I bet its short lived. The various specialties that cover ED call may think y'all are pains in their asses now but just wait til every ED is staffed with FPs and midlevels who consult twice as often for half the acuity cases. They will be begging for EM-trained folks to come back and since the hospitals listen when their cardiologists and orthopedists complain...

 

[Brahnold Bloodaxe]

However, the more I see the more I have a feeling that big malpractice awards might just be our best friend. That is what keeps hospitals in many cases from hiring specialty trained physicians over mid-levels or lesser trained physicians. Without that concern, it makes the lower cost labor source more attractive. It is all about the bottom line, if you think they care about "quality of care" you are insane. .........
.........
I also think the elimination of "joint and several" liability is bad for physicians - particularly EM physicians - and probably comes from the hospital lobby. Now, even if it is a big award, EM physicians are generally in the clear because attorneys will go after the "deep pockets" of the hospital when it comes time to collect. If it is based on degree of fault, that puts a much bigger target on the physician, and if they don't have any other choice they will go after the physician's assets. Now it almost never happens because it is not worth the effort, and there are more fruitful targets. So that is a very bad provision for us.

On the money. When you combine the logic of the first paragraph with that of the second, you get a real clusterf*ck. If this bill passes, not only will the costs of malpractice decrease, shifting the bean-counting calculus towards cheaper/riskier MLPs vs expensive/safer physicians, but the lawsuits will more often have to be targeted at the culpable providers themselves rather than at the hospital, shifting the balance even further in the wrong direction.

In the bygone era of physician-run autonomous private practice, reducing malpractice costs was a no-brainer. That era is long gone, so we have to readjust our thinking to reflect our new reality, which is that we are corporate slaves and our empty suit overlords are always looking at ways to make us redundant. Anything that makes this easier for them has to be considered detrimental to our profession.

 

[bravotwozero]

If you already live in a state with those caps, like say, Texas, or Michigan, I don't think it will change anything.


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[Status Sciaticus]

If you already live in a state with those caps, like say, Texas, or Michigan, I don't think it will change anything.


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In a way, it might be a good thing for Texas, as it will allow physicians to spread out across the US instead of localizing into Texas for the tort reform protections, thus reducing the number of EM docs here, leading to a shortage, and thus increased $$/hr. Atleast thats my convoluted way of looking at it. Keeping in mind that this only caps non-economic damages, juries can still place punitive damages on hospitals for negligence.

 

[xaelia]

My favorite part of the Texas deal isn't the cap – it's the willful and wanton standard in the Emergency setting.

 

[GeneralVeers]

No way that national tort reform will be constitutional. It is a state issue.

 

[GeneralVeers]

My favorite part of the Texas deal isn't the cap – it's the willful and wanton standard in the Emergency setting.

Exactly. I'm not generally worried about being sued as long as practice reasonable medicine. I do worry about complaint letters that could cost me my job.

 

[BAM!]

I also think the elimination of "joint and several" liability is bad for physicians - particularly EM physicians - and probably comes from the hospital lobby. Now, even if it is a big award, EM physicians are generally in the clear because attorneys will go after the "deep pockets" of the hospital when it comes time to collect.

Can someone explain this more? I don't see why the debt collectors woudn't go after the hospital and the physician.

 

[southerndoc]

No way that national tort reform will be constitutional. It is a state issue.

H.R. 1215 is interesting, and will be challenged for sure. I think it's dead in the water in the Senate though. I'm very active politically, and I have been told this is not likely to pass the Senate and may not make it out of committee.

Rep. King claims that Article I, Section 8, Clause I (the Spending Clause) and Clause 3 grants Congress the ability to pass uniform laws that remove barriers to trade and facilitate commerce nationwide. Article I, Section 8, Clause 9; Article III, Section 1, Clause I; and Article III, Section 2, Clause 2 grants Congress authority over federal courts.

In theory, this may be enforceable if it passes and Trump signs it into law. This is especially true of anything in federal court, but most of this is handled by the states.

The CBO estimates this will save the federal government $50 billion over 10 years.

Will be watching this as it makes its way through the Senate. It was referred to the Committee on the Judiciary. I have a feeling Feinstein (who is a ranking member on the committee) will have a lot of vocal opposition. I will discuss this with Sen. Isakson's health legislative assistant next week.

 

[ensuii]

would you let us know? i'm not very active politically but this definitely caught my attention

 

[Vandalia]

Can someone explain this more? I don't see why the debt collectors woudn't go after the hospital and the physician.

It is easier/cheaper to get a judgement paid by a corporation rather than an individual. (Or more specifically, a "real" corporation with actual assets.) It is essentially the same reason why physicians write off so much debt, except on a larger scale. With "joint and several" the hospital is fully on the hook, and it is tougher for them to evade the judgement. To go after a person - even a physician - is expensive. That is the reason why debt collectors buy debt at a very deep discount. That is also the reason why plaintiffs almost always eventually settle for coverage limits, even when they get a bigger judgement.

Fundamental rule: Lawyers always follow the path of least resistance.

 

[Pudortu]

My favorite part of the Texas deal isn't the cap – it's the willful and wanton standard in the Emergency setting.

Could you please explain what that means? I know what it sounds like in plain english but maybe a little bit more in legalese? TIA

 

[southerndoc]

It is easier/cheaper to get a judgement paid by a corporation rather than an individual. (Or more specifically, a "real" corporation with actual assets.) It is essentially the same reason why physicians write off so much debt, except on a larger scale. With "joint and several" the hospital is fully on the hook, and it is tougher for them to evade the judgement. To go after a person - even a physician - is expensive. That is the reason why debt collectors buy debt at a very deep discount. That is also the reason why plaintiffs almost always eventually settle for coverage limits, even when they get a bigger judgement.

Fundamental rule: Lawyers always follow the path of least resistance.

This isn't always true. Sometimes plaintiffs go after physicians and their groups and not the hospital. I am aware of one such case recently.

Some states also allow awards based on percentage of liability. One case where a physician ordered a wrong medicine led to an award above his malpractice limit. He was found 90% responsible and the hospital nurse 10% responsible for not double checking it. The award exceeded his malpractice coverage by more than 300% and is currently in appeal.

 

[xaelia]

Could you please explain what that means? I know what it sounds like in plain english but maybe a little bit more in legalese? TIA

"A person who in good faith administers emergency care, including using an automated external defibrillator, is not liable in civil damages for an act performed during the emergency unless the act is willfully or wantonly negligent."

This has been commonly interpreted to be the emergency department staff not only put the patient in extreme risk, but knew they were doing it, which is an extraordinarily high bar.

 

[Pudortu]

Thanks so much for explaining that.

 

[Brahnold Bloodaxe]

H.R. 1215 is interesting, and will be challenged for sure. I think it's dead in the water in the Senate though. I'm very active politically, and I have been told this is not likely to pass the Senate and may not make it out of committee.

Rep. King claims that Article I, Section 8, Clause I (the Spending Clause) and Clause 3 grants Congress the ability to pass uniform laws that remove barriers to trade and facilitate commerce nationwide. Article I, Section 8, Clause 9; Article III, Section 1, Clause I; and Article III, Section 2, Clause 2 grants Congress authority over federal courts.

In theory, this may be enforceable if it passes and Trump signs it into law. This is especially true of anything in federal court, but most of this is handled by the states.

The CBO estimates this will save the federal government $50 billion over 10 years.

Will be watching this as it makes its way through the Senate. It was referred to the Committee on the Judiciary. I have a feeling Feinstein (who is a ranking member on the committee) will have a lot of vocal opposition. I will discuss this with Sen. Isakson's health legislative assistant next week.

Nice rundown. Since you seem to have an inside scoop into some of this stuff, I was wondering if you had any insight into the physician owned hospital legislation that's been languishing in the house and senate the past couple of months?

 

[BAM!]

This isn't always true. Sometimes plaintiffs go after physicians and their groups and not the hospital. I am aware of one such case recently.

Some states also allow awards based on percentage of liability. One case where a physician ordered a wrong medicine led to an award above his malpractice limit. He was found 90% responsible and the hospital nurse 10% responsible for not double checking it. The award exceeded his malpractice coverage by more than 300% and is currently in appeal.

How many times can this sort of thing be appealed? Where the heck is a doctor going to come up with 3 million dollars? Certainly this lack of capital would be a factor in an award, right?

 

[Vandalia]

How many times can this sort of thing be appealed? Where the heck is a doctor going to come up with 3 million dollars? Certainly this lack of capital would be a factor in an award, right?

Usually - not always, but usually - cases are settled even after a judgement is entered. Take for example, the case of Erin Andrews and the lawsuit over the man who was spying on her through her hotel room door.

Erin Andrews settles stalker lawsuit with hotel

Even though she won a $27M judgement against the hotel chain, the case was settled for undisclosed terms. Collection is expensive, even if you have a final judgement. As a result, usually - usually, not always - things get settled for the malpractice coverage limits or an amount that is far less than the judgment. Keep in mind that the plaintiff's lawyers don't get paid until the money is actually received, and in many contingency fee agreements there is a sliding scale: for example in California by law they get 40% of the first $50,000 but only 15% of the amount over $1M. So the attorneys have strong motivation to settle and get cash fast and not much motivation to haggle after another $1M (of which they get at most $150K.) One of the advantages the physician (or hospital) has is to keep things tied up in appeals. Even though a bond usually has to be given, the attorney doesn't get the money until it is finished. Also keep in mind that attorney has laid out at minimum a couple $100K to prosecute the case and has to pay his bills. As I said, that is why things usually work out to a settlement under the amount of the judgement.

And that is where very basic asset protection can come in. If you manage your financial affairs in a normal, sound manner, that is usually enough. You don't have to make yourself judgement proof you just have to make it costly to get at assets. You don't have to have a great security system on your house, you just have to make sure there are more inviting targets for criminals in the neighborhood.

(The disclaimer: I am not an expert on this stuff. I am probably not even competent to talk about this. I am just going by what I hear from the hospital and malpractice defense attorneys that I deal with.)

 

[Raryn]

Will be watching this as it makes its way through the Senate. It was referred to the Committee on the Judiciary. I have a feeling Feinstein (who is a ranking member on the committee) will have a lot of vocal opposition. I will discuss this with Sen. Isakson's health legislative assistant next week.

Which is ironic, because the $250k limit on non-economic damages has been CA law for four decades, just overwhelmingly upheld by CA voters via referendum in 2014.

 

[southerndoc]

Which is ironic, because the $250k limit on non-economic damages has been CA law for four decades, just overwhelmingly upheld by CA voters via referendum in 2014.

I wish Georgia's cap hadn't been overturned. Even the gross negligence clause was challenged recently (patient was discharged home, case proceeded because they were discharged and therefore not deemed an emergency or unstable patient).

Trump has mentioned tort reform many times, but it is not high on his agenda. Overall, healthcare reform is. This is part of the healthcare reform, but not as big of a player to him as overturning the ACA.

 

[The White Coat Investor]

The award exceeded his malpractice coverage by more than 300% and is currently in appeal.

It should be noted that most of these are reduced to policy limits on appeal.

 

[throckmortonDO]

I got an AAEM notification that this bill got voted on and passed on wednesday? at least if I'm reading it correctly. im a little sleep deprived but I think thats what it says. it says "the provisions would apply to healthcare lawsuits where coverage was provided or subsidized by the federal govertment. th bill would preempt state laws". does this mean then it only applies to VA type settings?

 

[RustedFox]

I got an AAEM notification that this bill got voted on and passed on wednesday? at least if I'm reading it correctly. im a little sleep deprived but I think thats what it says. it says "the provisions would apply to healthcare lawsuits where coverage was provided or subsidized by the federal govertment. th bill would preempt state laws". does this mean then it only applies to VA type settings?

Hasn't passed senate yet.

H.R.1215 - 115th Congress (2017-2018): Protecting Access to Care Act of 2017

 

[deleted109597]

I got an AAEM notification that this bill got voted on and passed on wednesday? at least if I'm reading it correctly. im a little sleep deprived but I think thats what it says. it says "the provisions would apply to healthcare lawsuits where coverage was provided or subsidized by the federal govertment. th bill would preempt state laws". does this mean then it only applies to VA type settings?

Any CMS shop likely.

 

[Birdstrike]

Damn, I haven't been on here in a while. Lol

 

[doctorFred]

It should be noted that most of these are reduced to policy limits on appeal.

Do you have a source for this? Although I know anecdotally that personal assets are rarely (if ever) at risk, I would love to be able to back the point up for a lecture I'm preparing on litigation in EM.

 

[The White Coat Investor]

Do you have a source for this? Although I know anecdotally that personal assets are rarely (if ever) at risk, I would love to be able to back the point up for a lecture I'm preparing on litigation in EM.

I don't subscribe to the (expensive) publications that would serve as a source for this. Your local ambulance chasing firm does though.

 

[Vandalia]

Research is worth what you pay for it (or so I am told), but this article from the University of California-Irvine Law Review courtesy of Google, has some data from Texas. They also make the interesting claim that it is in our (not their) best interest to go with the lowest policy limits possible.

Now Texas is different in many ways and in many different respects, but anecdotal evidence suggests the trends are the same across most of the country. They find that if you have a $250,000 policy limit, 1.2% of cases result in a "out of pocket payment" (OOPP), and for a $500,000 limit, 0.3% of cases wind up with an OOPP. (After a quick skim, I believe that payments from a hospital or another physician are included in the "out of pocket payments", but I am not sure.)

Also, "(W)e find that, in the aggregate, victorious plaintiffs received only half of their jury awards—and the larger the verdict, the larger and more likely the “haircut. Policy limits help explain these haircuts. In regression analyses, we find that in cases with jury verdicts, limits have no statistically significant impact on payouts when the verdicts are below limits, but limits strongly constrain payouts when verdicts are above limits. In the aggregate, plaintiffs collected, on average, 87% of below-limits adjusted verdicts but only 15% of above-limits amounts. To summarize, plaintiffs simply have an exceedingly hard time collecting amounts that exceed policy limits."

For some hard data, with a $1M/3M policy, their data show the risk of any physician having to make an OOPP in a given year is 0.007% (2 per 28,000), with the majority of those payments being less than $100K.

http://www.law.uci.edu/lawreview/vol5/no3/Silver.pdf

EDIT: The most interesting tidbit for me was that physicians who are involved in peri-natal care carry the lowest policy limits, despite being the physicians most likely to have the highest damages against them.

 

[Old_Mil]

I got an AAEM notification that this bill got voted on and passed on wednesday? at least if I'm reading it correctly. im a little sleep deprived but I think thats what it says. it says "the provisions would apply to healthcare lawsuits where coverage was provided or subsidized by the federal govertment. th bill would preempt state laws". does this mean then it only applies to VA type settings?

"Provided or subsidized by" would to me mean VA, Tricare, Medicaid, and Medicare.

A broader application of it might include include encounters paid for by Obamacare policies in which the convered patient had received a marketplace subsidy.