This Makes Me Sick

U.S. Congressman Mac Thornberry Speaks Up

Congressman Thornberry (TX-13) began exploring the idea of health courts in 2003 after meeting with a group of distraught doctors who were dealing with the medical liability crisis in Texas. Then after reading Phillip K. Howard’s The Death of Common Sense and The Collapse of the Common Good, he became convinced that legislative action was needed to explore alternatives to the current system.

Last April, with the help of the folks at the Common Good and the Progressive Policy Institute, I introduced the “Medical Liability Procedural Reform Act of 2005.” H.R. 1546 will authorize funding for states to create administrative health courts presided over by full-time judges who have training in medical law and procedure. The rulings of these judges, who could be aided by neutral experts accountable to the court, would ultimately provide consistent standards of care as a matter of law. Their rulings would set precedents upon which patients, providers, and society could rely.

My experiences working on the health courts legislation have been two fold. The introduction of a similar bipartisan health courts bill introduced Senators Michael Enzi (R-WY) and Max Baucus (D-MT) last June was encouraging. It has also been exciting to participate in numerous health court briefs and discussions over the past year. These events, both on and off Capitol Hill, sponsored by the Common Good, the Progressive Policy Institute, and the Brookings Institute, have been attended by Congressmen, congressional staff, and some of the most prominent leaders in health care and law.

While people were enthusiastic about the health courts proposal at the time of the events, the luster seemed to fade away rather quickly. It has been tough trying to garner cosponsors for the bill. For instance, I was very confident this past summer that a Democratic Congressman was going to sign on to the bill. He and his staff were very interested in the idea after attending a couple of these events. Unfortunately, the Association of Trial Lawyers caught wind of his interest in the bill and they quickly changed his mind by threatening to cut off all campaign contributions.

I guess this goes to show how difficult it is to get a new, innovative and promising idea through the heads of Washington bureaucrats. While the health courts proposal is not going to happen over night, I am confident that continued discussion and awareness about the failures of our current medical liability system will one day bring about changes to the system for the benefit of patients, physicians and the general public.”

Health Courts and the 7th Amendment

The idea of special health courts helping clean up the medical liability mess has produced some lively debate here. In Dr. Novack’s post this week, the radio host and surgeon takes aim at those who charge that the courts disregard the 7^th Amendment of our vaunted Constitution. In particular, he speaks to one trail attorney who has a penchant for commentary in this forum.

The Seventh Amendment

"In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”

Quoting from FindLaw, “the primary purpose of the Amendment was to preserve the historic line separating the province of the jury from that of the judge, without at the same time preventing procedural improvement which did not transgress this line.”

On this same page, you can read about the numerous procedural issues that have been upheld. Again, I use the world of workers’ compensation as a parallel example of how states can, through law or constitutionally, establish systems where a right to a jury trial is waived, in exchange for what would be hoped to be a more fair and equitable system for both employers and employees. More after the jump.

Big Pharma not liable for vaccine-related injuries?

By now, it's clear we think the country's medical liability situation needs a drastic makeover. Yet, it doesn't seem that taking care of the major drug companies helps any. Priorities, people! In a pointed critique, Dan Hamburg--former U.S. Congressman and Executive Director of the non-profit Voice of the Environment--takes aim at Washington protecting drug makers in the latest Department of Defense Appropriations bill. Read [Santa Monica Mirror]

Wheels are turning in Washington State

We applauded the Olympian newspaper for hosting talks on med mal and liability issues in the fair northwest. Now the state's legislature is stepping up to the plate. A new bill--albeit the same one that died in the senate last year--from the Democratic-led house deals with patient safety, tighter regulation of the insurance industry and limits on expert witnesses at trial (except where a judge sees good cause for more). Movement begins, though some Republicans are miffed as their amendments-- including offering legal protections for doctors who apologize for medical errors and another one asking juries to decide if a lawsuit is frivolous--got shelved. WE NEED BOTH PARTIES TO COME TOGETHER! Read [The Olympian]

Stash the camera new poppa

Hat tip to our friends at Common Good for catching this depressing story from the Windy City. In a Sun-Times op-ed piece, a new mother blasts the fact that her husband couldn't capture the birth of their third child on camera.  Seems that pesky liability concerns led to the ban at Northwestern Memorial and most other major hospitals across Illinois. Maybe courtroom artists can pick up the slack. What a shame. Read [Chicago Sun-Times]

Life support for the nation's ERs

Congrats America! Our emergency medicine room system as a whole scored a stellar C - , according to a new study by the American College of Emergency Physicians. A few states are pulling their weight, with California, Massachusetts, Connecticut, and the District of Columbia nation with overall grades of B. But a dozen states, from Alabama to Washington are riding the D train. The study highlights increased ER overcrowding, declining access to care, soaring liability costs and a poor capacity to deal with public health or terrorist disasters. We note the liability ingredient in this sorry state of affairs, which many link to ER physician shortages, delays in patient care and increased patient transfers aka “dumping.” Still don’t think the crisis affects you? See how your state stacks up.

Newspaper gets docs and lawyers to TALK

After four years, there's been little substantive movement on how to fix Washington State's worsening med-mal and liability situation.  Two ballot initiatives failed last fall.  Lawyers and doc groups have been bickering. And they've launched dueling, cutting campaigns. But nothing has happened.  So they're back at the negotiating table... in the community room of The Olympian newspaper! How about them apples?  Some of the recycled, er, new ideas floated: consider a “no-fault” system like workers’ compensation for injured parties; have the state insurance commissioner tightly regulate insurers; push plaintiffs and defendants to settle claims for negligent medical care early on; collect data on bad medical outcomes and incidents in hospitals. We like it. Though, talk is--how do you say--cheap. Read [The Olympian]

WV senator tackles 'fraudulent' and 'tacky' lawyer ads

West Virginia Senate Majority Leader Truman Chafin has seen enough. "The legal profession's public image, once perceived as honorable and noble, has eroded into a carnival-like thing, akin to a blue-light special, touted on a used car lot," reads a recent resolution by State Sen. Chafin. He wants to create an independant committe to review ads and new advertising rules like they've got in Kentucky. Oh, yeah, forgot to tell you that Chafin is also a "wealthy trial attorney." And he's a democrat, too. Would any of our fiery readers like to respond to that? Read [Lexington Herald-Leader]

Let the discourse commence

As 2006 gains steam, so does the passion regarding America’s medical liability crisis. Facts and figures are flying. Thankfully, the arguments here are centered and civil. Guest blogger Eric Novack brought up his support for special health courts, which our friends at Common Good have been championing across the country. Eric’s post ushered in some pointed thoughts from a reader who asked: "Why do we need health courts to ’establish a baseline of quality medical care that would only improve over time.’ Why can't physicians do that right now?” A lively back and forth ensued. Read it here.

If you read something on TMMS that makes you sick. Or fired up. Or conjures up a memorable experience, let us know. This is your forum to change the system.

I don't hear the fat lady singing

Donna Baver Rovito is a professional journalist, mother, 10 year breast cancer survivor and wife of a Pennsylvania general surgeon.  Through her Liability Update newsletter and weblog, she advocates for physicians and patients in support of medical liability reform, and has spoken and written widely on the topic at both the state and national level. We’re happy to have her contribute to TMMS. Today she tells us why Pennsylvania's medical liability crisis is NOT over, as some in the state have declared.

You have to appreciate the irony--the very same folks who've been telling Pennsylvania patients and legislators for years that there IS no medical liability crisis here have jumped onto the bandwagon just in time to proclaim that the "crisis" they've been denying for five years is "over!"  Or "easing."  Or whatever.

OK, maybe you don't have to appreciate it, maybe you just have to run for the bathroom....but in any case, it sure is funny--peculiar, though, as opposed to ha-ha.

Because Pennsylvania's doctors- -and patients-- aren't laughing. OR celebrating.

The trial bar's misinformation campaign hit the big time last week when a Philadelphia Inquirer article that credits the PA legislature, Supreme Court and Governor Ed Rendell with curing PA's medical liability "crisis" (their quotes, not mine) was picked up by the Associated Press.

The story, which echoed press releases from trial lawyer front groups and recent speeches by the governor (who badly needs a "win" in his column as he begins a tough campaign for reelection with basement-level poll numbers everywhere but Philadelphia) credited several developments as "proof" the crisis is easing.

So go and pick out a new car, docs.  Medical liability carriers in PA aren't raising base rates this year!  What a relief it will be to continue to pay premiums ONLY 247.5% higher than they were in 2000.....no, no, it's fine, it would be GREEDY of doctors to demand that obscene premiums actually go DOWN before declaring victory...or that PA ob/gyns, who pay about $170,000 a year, should get to pay premiums more like ob/gyns in Wisconsin, who pay about $24,000 for the same coverage.