Legislation

Published on: March 5, 2009

Further Evidence That Tort Reform Does Not Work

Here in Illinois the legislature passed the Medical Malpractice Reform Act of 2005. The MMRA caps damages and contains other relief that benefits nobody but the state’s insurance companies.

In neighboring Indiana they have tort reform also. Claimants are required to present their cases to a medical review board composed of “independent” doctors. These doctors pass judgement on the merits of a case before a plaintiff can file suit. The cost in terms of time and money is an onerous one for litigants who have been legitimately injured by a physician or hospital.

Case in point, the estate of an Indiana woman received an award from an Indiana Malpractice review panel that has taken almost 5 years to reach a decision in his case. The matter involves Indiana doctor Mark Weinberger who gained noteriety several years ago when he fled the country to avoid his creditors and malpractice claims. The victory is bittersweet in that Indiana law has allowed bankers to get to Dr. Mark Weinberger’s assets before his patient, who will now have to wage another legal battle in hope of receiving a judgment capped by tort reform laws at $1.25 million.

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Published on: March 2, 2009

Saying Sorry

By Goldberg & Goldberg

Often times when we meet with new clients in our Chicago office they tell us that they are most upset about the fact that no one has ever said they are sorry after a tragic event occurs. Lawyers and insurance companies have for years advised their doctor clients to deny and defend. The rationale behind this behavior is an attempt to foil these patients from filing claims or costly lawsuits. This behavior is contrary to what most of us learn at an early age, taking responsibility for ones actions and showing empathy is better than running away from the truth.

Malcolm Gladstone in his book Blink acknowledged this behavior and cited an interesting study that showed that when a doctor apologized for a mistake his patients were less likely to pursue legal action. Gladstone makes a very important point. People just dont sue doctors that they like. He cites work by medical researcher Wendy Levinson who recorded hundreds of conversations between a group of physicians and their patients. Roughly half of the doctors had never been sued. The other half had been sued at least twice, and Levinson found that just on the basis of those conversations, she could find clear differences between the two groups. The surgeons who had never been sued spent more than three minutes longer with each patient than those who had been sued did (18.3 minutes versus 15 minutes). They were more likely to make “orienting” comments, such as “First I’ll examine you, and then we will talk the problem over” or “I will leave time for your questions”–which help patients get a sense of what the visit is supposed to accomplish and when they ought to ask questions. They were more likely to engage in active listening, saying such things as “Go on, tell me more about that,” and they were far more likely to laugh and be funny during the visit. Interestingly, there was no difference in the amount or quality of information they gave their patients; they didn’t provide more details about medication or the patient’s condition. The difference was entirely in how they talked to their patients.

Thirty-five states have passed laws making expressions of apology within the first month-or-so after an incident occurs inadmissable in a civil lawsuit for malpractice. With apology legislation mistakes have now become teaching opportunities as opposed to adversarial situations. This allows patients to understand the situation, find answers and assure that justice is served.

Published on: March 2, 2009

The Malpractice Crisis

By Goldberg & Goldberg

As Chicago Medical Malpractice trial lawyers we are often confronted by people that cite the Medical Malpractice crisis in Chicago, Illinois and nationwide as the primary reason for escalating health care costs. People believe that medical malpractice lawsuits have resulted in escalating health insurance premiums due to an increase in lawsuit payouts by doctors and their insurance companies. This is a fiction advanced by Illinois insurance companies in the hopes of generating support for self serving caps on damages awards that do nothing except help protect profits for big business.

The truth behind the facts cited by the insurance industry and physicians is startling when the facts are actually exposed. Medical Malpractice claims in Chicago and throughout Illinois have been decreasing over the past five years. According to public data filed by ISMIE, the states largest malpractice insurer, In 2004, ISMIE paid 10 percent less in total claims than it did in 2003. The average amount ISMIE paid on a claim in 2004 was 20 percent less than in 2003 and less than the average amount in 2002. In 2004, the difference between the amount of premium dollars taken in and the amount paid out in claims was about $270 million. That means Illinois Physicians paid the insurance company $270 million dollars more in 2004 that was necessary to cover claims expenses. Even counting ISMIE’s overhead and other expenses that amount equals a staggering profit for the insurance company.

Caps on damages, the remedy contained in the Medical Malpractice Reform Act of 2005, are championed by supporters as the way to lower doctor’s premiums and return these savings to the patient. This has not been the case in other states where this type of tort reform legislation has been the law. California is the best proof of why caps on damages don’t lower premiums, while insurance reform does. In 1986, after a decade of caps on damages, California was once again mired in an insurance crisis, with medical malpractice premiums rising at a rate of 26 percent annually. Malpractice premiums increased 120% during the first 12 years after the enactment of the MICRA cap. Proposition 103, a ballot initiative passed by California voters in 1988, enacted the strongest insurance rate regulation in the nation. This law resulted in a rate freeze, a rate rollback, allowed doctors and consumer groups to appeal rate approval and enacted stringent regulation that reduced premiums in all lines of insurance.
Even if caps did lower premiums, ISMIE has said that a cap on damages would at best lower premiums 20 percent several years from now. But reducing the premiums 20 percent would not even reduce them to the level they were in 2002 before the huge rate increase in 2003 that supposedly caused the “crisis.”

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