Don’t expect tort reform to lower healthcare costs.

In his speech last night, President Trump made the following statement:

“[W]e should implement legal reforms that protect patients and doctors from unnecessary costs that drive up the price of insurance and work to bring down the artificially high price of drugs and bring them down immediately.”

Given the position of Republicans on the issue, it is safe to assume that the “legal reforms” to which he refers are some type of tort reform that would limit the ability of victims to recover for negligence of physicians. Many people, perhaps even the President, are not aware that medical malpractice tort reform has been in effect in Pennsylvania for about fifteen years, and has already drastically lowered the number of lawsuits and verdicts. For example, the number of Pennsylvania medical malpractice jury verdicts hit a fifteen year low in 2015. The number of medical malpractice lawsuits now is about half of what it was in the late 1990s and early 2000s.

Despite the drastic impact of these reforms and those in other states, there has not been a corresponding decline in healthcare costs or insurance premiums. It would therefore be surprising if any federal tort reform acted to reduce “unnecessary costs that drive up the price of insurance.”

Lawsuits are hard. Don’t presume you have one.

A man named Ken Walton recently wrote a facebook post that gained a great deal of attention. He alleges that, due to the fact that the rental car he was driving had its license plate stolen, he and his young daughter were pulled over. An officer pointed his gun at Mr. Walton, ordered him out of the car, threatened to shoot him, handcuffed him, and placed him in the police vehicle. Mr. Walton was eventually let go after it was learned he had done nothing wrong.

In his post, Mr. Walton writes, “Will I sue? I doubt it. I don’t want money from this (I can afford to send my daughter to counseling) and anything a settlement would generate would be trivial to me, and not worth the time it steals from my life.”

Mr Walton’s post got a great deal of attention. As of today, there are over three thousand comments to Mr. Walton’s post. For the purposes of this post, there are a couple of things to note from those comments. First, there are a great number of people encouraging him to file a lawsuit. In both the comments to the post and the post itself, there seems to be a presumption that a lawsuit would be successful. Second, many of the people encouraging him to file a lawsuit instruct him to find a lawyer to do it pro bono or to use GoFundMe to fund the lawsuit.

This post brings to my mind a few things that I’ve been thinking about recently regarding how lawsuits are evaluated and decided.

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Audit raises concerns about nursing home staffing levels.

A recent audit (report here) by the Pennsylvania Auditor General raises serious concerns about nursing home operation in Pennsylvania. The audit covered the period of January 1, 2014 through October 31, 2015. The report broke the key issues up into three areas of focus.

In the first (and most important) area of focus, the audit revealed that the Department of Health did not have sufficient policies and procedures to ensure that nursing homes provided the required 2.7 hours of direct patient care per day. The hours of direct patient care were often self-reported and not backed-up of adequate supporting documentation. In addition, the audit revealed that the minimum number of 2.7 hours might be too low.

The second area of focus deals with the Department of Health’s handling of complaints. The Department has a policy of disregarding anonymous complaint about nursing homes. The audit also found deficiencies in the Departments documentation and prioritization practices. These practices can lead to a mishandling or rejection of serious and urgent complaints.

The third area of focus deals with imposition of sanctions by the Department. The audit revealed that, in cases where the department administered education, rather than fines, to facilities that had severe violations, the decision making process was not adequately documented.

These findings should alarm anyone with a loved one in a nursing home. It is important to keep in mind that any legislation limiting the ability to bring private lawsuits against nursing homes will only make this problem worse. It is therefore important to strongly protect the rights of individuals to bring lawsuits, allowing them to recover adequate damages and perform their own investigations, when nursing home abuse occurs.

Medical Malpractice Verdicts at 15 Year Low

There were 101 medical malpractice jury verdicts in Pennsylvania in 2015. Seventy-nine of these verdicts were defense verdicts. The number of medical malpractice verdicts is a fifteen year low. Between 2000 and 2002, there was an average of 326 medical malpractice jury verdicts per year.

Further, the total number of medical malpractice filings in 2015 was 1,519, which is down from an average of 2,733 between 2000 and 2002. The reduction in verdicts and total filings was caused by the 2002 MCare Act, which made it more difficult to file medical malpractice actions in Pennsylvania.

In discussions about tort reform, it is important to know these numbers, which show that tort reform is already in effect and drastically reducing the number of medical malpractice lawsuits in Pennsylvania.The reduction in lawsuits, however, has not corresponded with a reduction in medical costs or insurance premiums.

Is your doctor making money off of unnecessary surgical implants?

The Senate Finance Committee issued a recent report on Physician Owned Distributorships (“POD”s) and their impact on patient care. PODs are

physician-owned entities that derive revenue from selling, or arranging for the sale of, implantable medical devices ordered by their physician-owners for use in procedures the physician-owners perform on their own patients at hospitals or ambulatory surgical centers.

Unsurprisingly, this arrangement creates incentives for surgeons to recommend surgery at a higher rate, with the knowledge that they will get additional income from the use of implantable medical devices supplied by their POD.

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The Impact of Tort Reform in Pennsylvania

Many people do not know the extent to which tort reform has progressed at the state level. This page has some good information on the impact of Pennsylvania’s 2002 MCARE Act. The MCARE Act placed additional demands on medical malpractice plaintiffs. Most importantly, it required that they bring the lawsuit in the county where the malpractice occurred and it required a “certificate of merit” by a qualified physician prior to filing. The number of medical malpractice cases filed statewide from 2000 through 2014 and the percentage of defense verdicts in cases that went to trial are below: Continue reading