IF anyone doubted the how much the trial lawyers own the Democratic party, please check out this little present to the ambulance chasers tucked away in the 1900+ page healthcare reform bill

In Section 2531, entitled “Medical Liability Alternatives,” establishes an incentive program for states to adopt and implement alternatives to medical liability litigation. [But]…… a state is not eligible for the incentive payments if that state puts a law on the books that limits attorneys’ fees or imposes caps on damages.

So basically it says states are free to experiment with alternative settlement systems, but keep your hands off the big contingency fees of our donor base or we'll withhold federal money. Ironically, this bill would also incentivize states to encourage more frivolous suits by removing existing caps on non-economic damages.


This is absolutely disgusting!

Rob

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You may not remember it much, but most of those of us who were forced to endure studying the epic poem, Beowulf were introduced to the concept of the weregild. In the 2007 CGI adaptation of Beowulf, apparently the side plot discussing the weregild was cut to make more time for Angelina Jolie's CGI-enhanced, naked, high heel wearing turn as Grendel's mom. Probably a smart decision by the producers in terms of the box office :)





The weregild was literally a "man price" you paid as compensation for killing someone, and there was a price on everyone from the dregs of society all the way for one prescribed for regicide (killing the king). It's a fascinating social compact that was used to try and temper blood feuds with their cycles of repeat violence and revenge. The Roman Catholic church eventually enacted their own version of "tort reform" on the weregild, condemning it and forcing elimination of the practice near the end of the 1st millennium AD.

From Wikipedia's entry,

The standard weregeld for a freeman appears to have been 200 solidi (shillings) in the Migration period, an amount reflected as the basic amount due for the death of a ceorl both in Anglo-Saxon and continental law codes. This fee could however be multiplied according to the social rank of the victim and the circumstances of the crime. For example, the 8th century Lex Alamannorum sets the weregeld for a duke or archbishop at three times the basic value (600 shillings), while the killing of a low ranking cleric was fined with 300, raised to 400 if the cleric was attacked while he was reading mass.

The size of the weregild was largely conditional upon the social rank of the victim. A regular enslaved man (ceorl) was worth 200 shillings in 9th century Mercian law (twyhyndeman), a nobleman was worth 1200 (twelfhyndeman). The law code even mentions the weregeld for a king, at 30000, composed of 15000 for the man, paid to the royal family, and 15000 for the kingship, paid to the people. An archbishop is likewise valued at 15000. The weregild for a Welshman was 110 if he owned at least one hide of land, and 80 if he was landless.

NOTE: For those interested, there's a fascinating catalog of such fines from the Salian Franks (a German dynasty)here, which covers the price of various offences, ranging from stealing your cow to gang raping your wife


Ok Rob, why are you talking about weregilds on Plastic Surgery 101 anyway?

There were several articles about healthcare I read this week that all kind of intersect at the fringe of the debate on healthcare and got me thinking about the equivalent of the modern weregild.

"A Place Where Cancer is the Norm", which describes Houston's MD Anderson cancer center.

"Cancer Society, in Shift, Has Concerns on Screenings" which describes a pullback from the American Cancer Society on just how effective mammograms and prostate cancer screening (via PSA tests) on affecting death from cancer.











"Can 'bundled' payments help slash health costs?" in USA Today

Sunday Night's 60 Minute's piece (click here to view)on more then $60 billion annual loss to Medicare fraud and how the Feds have been inept at policing it.

An article in Oregon's Statesman Journal, "Government Audits Are Hurting Small Business Owners" describing the federal government's Recovery Audit Contractor(RAC) program for Medicare fraud.

The articles on cancer screening and exotic treatments at MD Anderson hospital to me point towards a more strict cost-benefit analysis coming on cancer treatments. The tertiary chemotherapy drugs and adjuvant radiation treatments described are budget busters with very marginal utility in terms of outcomes. The care described in the article, where chemotherapy treatments were literally thrown against the wall to see what sticks, is not a sustainable model. We're going to asking more and more, "How much are 'x' additional months of this cancer patient's life worth?" in order to balance our health care budget. It is unavoidable that we don't end up with some federal utilization committee who's job it will be to tell us what we cannot do in terms of palliative care for cancer or other chronic diseases. Other countries already do this without much controversy, but President Obama won't touch this with a 10 foot pole.

The USA Today article on bundling payments seems unworkable in situations where physicians are not employees of the hospital or system involved. I would not trust a hospital corporation to distribute that money equitably to independent providers once they have it in their coffer. Would I have access to audit a hospital's books to make sure their accounting is accurate? What's the resolution process for disagreements on the balance sheet? Much like insurers, the temptation for them to slow-pedal payments to collect the interest would be impossible for them to resist. Except in certain "closed system" situations (where all MD's are employees)like the Mayo Clinic, the Cleavland Clinic, or the Kaiser network in California, this bundling would be a unacceptable working situation to most physicians.

The 60 Minutes piece on Medicare shows why no one who is familiar with healthcare believes that the federal government can run a single-payer system. They are unable to investigate or follow up on even the most blatant examples of fraud costing hundreds of billions over dollars a decade.


So what do they do instead? They reauthorize the "RAC" program to aim at providers and hospitals for fraud that may be pennies on the dollar compared to the fraud described in the 60 minutes piece. The feds have outsourced the Recovery Audit Contractor (RAC)program to incentivized companies to autopsy medicare billing going back over 3 years by hospitals and providers where any inaccurate billing (using our byzantine CPT system) is assumed fraudulent and due back with interest and penalties. Analysts expect that inaccurate coding underbills at least as often as it overbills, but do you know what these auditors have produced. What do you get however when you incentivize these companies to claim 8-12% of any recovery (but don't reward refunds)? You get 96%+ of these RAC audits finding overbilling only.

Rob

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President Obama has spent the week furiously trying to put lipstick on the pig that is his healthcare reform bill. He gave a fine speech last week which was noticeably short (by design) on specifics, and one which left out any plausible way to pay for the program. Trying to defang critics, he generalized a number of areas where centrist Democrats and Republican ideas would be incorporated. One of these was a brief mention of tort reform.

Color me uinmpressed.

As with his summer speech at the American Medical Society (AMA) meeting that was met with boos, the president has over and over made it clear he is not interested in addressing real medical tort reform. If you took the most disingenuous elements of lawyer-speak mixed equal parts with the opacity of politican-speak you end up with the President's message to his Democratic trial bar donors (alongside organized labor, the most influential group in Democratic politics). ie "Relax boys, THERE WILL BE NO REAL RESTRICTIONS ON YOUR ABILITY TO SUE DOCTORS, Amen!"

Anyway.....

From the 60 Minutes interview tonight(click here for video)

KROFT: If it came down to getting this plan passed would you be willing to do more in the area of tort reform and malpractice insurance? Would you be willing to agree to caps, for example, on malpractice judgments?

OBAMA: You know what I would be willing to do is to consider any ideas out there that would actually work in terms of reducing costs, improving the quality of patient care. So far the evidence I've seen is that caps will not do that. But there are a range of ideas that are out there, offered by doctors' organizations like the AMA, that I think we can explore.....

KROFT: And the conventional wisdom has been that the reason that the House has always voted against any kind of malpractice reform or tort reform was because of the heavy contributions from the trial lawyers.

OBAMA: That is the conventional wisdom. And I think there's also been philosophical issues and differences about whether or not patients who really have been subject to negligence, whether it's fair to just say to them, "You know what? You can only get a certain amount, no matter how egregious it is."

That is nothing but double-speak goblety-gook which avoid any commitment to do anything. At least Democratic leader Howard Dean had the balls to recently come out and say that tort reform is not going to be in the bill because of the relationship of the party to the trial bar.



Rob

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This is getting real old, but the American trial bar is once again attempting to establish a game plan for circumventing liability protection that the FDA grants drug and device manufacturers after going thru the FDA approval process. An important legal precedent was upheld last winter which I wrote about in a post "Trial lawyers' ability to second guess the FDA on medical devices neutered" which refused a plaintiff's motion to allow layperson juries to essentially second guess the proceedings of expert FDA panels on medical devices. Medicines curently do not have that same level of insulation, and trial lawyers are contributing in record numbers to the Democrats for the fall election expecting favorable amendments to the law allowing expanded liability.

In a New York Times story this week, "Drug Label, Maimed Patient and Crucial Test for Justices" the case of a patient who had an inadvertent injection by a allied health provider (not a doctor)of a widely used anti-nausea medication (phenergan) into an artery in her hand and eventually suffered an amputation as a result of complications. This drug has been used for decades, and is both safe and cheap. The manufacturer of the drug is essentially being sued for a labeling issue where they claim that warnings about her particular complication were not prominent enough.

This type of action is embarrassing for our legal system, and demonstrates the great American legal tradition of finding the deepest pocket and suing the hell out of it. In this instance, the medical center already settled with this patient, but they're going for the big $$$$. While this individual had a terrible thing happen, it's not even clear that true malpractice even happened. Fines and putative damages on industry in these cases should be paid to the feds rather then individuals so as to remove the financial incentive for these ridiculous cases beyond economic damages.


rob

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Awhile back I'd written about (see here) the Democratic Governor of Wisconsin, Jim Doyle, raiding a trust fund set up (and paid for) by Doctors to stabilize medical-malpractice insurance costs in that state. Why? In order to avoid unpopular budget and spending cuts to balance his budget. That case is still being litigated.

Taking inspiration from his Democratic cohort, Pennsylvania's governor, Ed Rendell (D-Pa) has targeted their state's Medical Care Availability and Reduction of Error Fund to the tune of $400 million USD to cover deficits in their state's budget. A summary of this can be viewed in the AMA News, here.

This program known as "Mcare" has been successful in partially turning around Pennsylvania's climate for being a horrible state for doctor's to work in re. to med-mal conditions. MCare provides doctors with catastrophic coverage for medical malpractice. Doctors in Pennsylvania purchase $500,000 worth of insurance from a primary carrier and then another $500,000 worth of coverage from MCare. It was also a key component of limited tort reform in that state. On its Web site, the Pennsylvania medical society has posted the question, "Would you continue to practice in Pennsylvania if you no longer received relief (abatement) from MCare?" Nearly two-thirds of respondents said they would not.

FREE ADVICE: Ed, in a state struggling with access problems, I'm not sure that driving away health care providers is the way to go.

Governor Rendell has been progressive in trying to expand health care coverage in Pennsylvania (which is a good thing), but he has been unwilling to make hard spending cuts and unsuccessful in persuading his state legislature to fund his ideas thru taxes on tobacco and business not offering health insurance. He now is trying to play political hardball and quite willing to disrespect the health care providers in his state to do it. An article in today's Pittsburgh Post Gazette quotes the Governor as saying

"If I have to choose between taking care of doctors and taking care of someone who has cancer and doesn't have health insurance, it's an easy choice"

This is an unbelievably cynical "straw man" tactic (ie. setting up false alternatives to make a rhetorical point).

There's no plausible or logical link between Mcare and his political failures, but merely he sees a pot of "easy money" sitting around funding a successful program whose constituents (ie. doctors) don't have the resources to hurt him politically if he steamrolls them.


To Governor Rendell, I ask you:

PLEASE KEEP YOUR HAND OUT OF THE COOKIE JAR!


Rob

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Many of the major product liability cases of the last 30 years involving occupational exposure and medical devices have served as the poster-children for what's wrong about the way the United States legal system sorts these issues out. Class-action plaintiff's attorneys have repeatedly exhibited some of the most jaw-dropping acts of dishonorable behavior in the pursuit of settlements that pay themselves ten's or even hundreds of millions of dollars in legal fees and compensation.

Law professor, Lester Brickman recently estimated in the New York Times that “mass tort fraud” has cost at least $30 billion just in the last 15 years and cited "compelling evidence” that "many if not most of the medical reports supporting more than 700,000 damage claims filed in asbestos, silica, diet drug and silicone breast implant litigation are frauds

Many of these cases would have gone nowhere without the complicity of physicians from a number of disciplines who have either inaccurately or fraudulently testified in court, or those that have set up lucrative "diagnosis mills" based on referrals from trial lawyers to establish their claim.

From the Wall Street Journal:

Over one million potential litigants have been screened by agents for tort lawyers in asbestos, silica, silicone breast implant and diet drug (fen-phen) litigation. The lawyers sponsoring these screenings have paid over $100 million for medical reports to support the 700,000 or more claims generated by these screenings. There is compelling evidence, much of it reviewed in my published writings, that the vast majority of these medical reports, including chest X-ray readings, echocardiograms, pulmonary function tests and diagnoses are bogus.

The dimensions of this fraud are stunning. An asbestos screening of 1,000 potential litigants generates about 500-600 diagnoses of asbestosis. If these same occupationally exposed workers were examined in clinical settings, approximately 30-50 would be diagnosed with asbestosis. The total take for "excess" asbestos diagnoses is more than $25 billion, of which $10 billion has gone to the lawyers. More billions for bogus claims in the diet drug (fen-phen) and silicone breast implant litigations can be added to this bill.

A comparative handful of doctors and technicians are responsible for the vast majority of bogus medical tests and diagnoses. To indict and prosecute those responsible would require testimony from other doctors that the mass-produced diagnoses cannot have been rendered in good faith.

To be sure, doctors can differ in reading X-rays or making a diagnosis. But when a doctor has been paid millions of dollars to produce 5,000 or even 50,000 diagnoses in the course of mass-tort screenings -- and when panels of experts have found the vast majority of these to be in error -- the most compelling conclusion is that the diagnoses were "manufactured for money."

There's been a long overdue movement in medicine about better regulating the way Doctor's serve as expert witnesses. A number of specialty societies' have started to put forth registries for their members to enlist in for tracking and also allow peer review of expert testimony. Along with this are calls to put reasonable caps on how much a doctor should charge for their case review and testimony fees so as to remove the financial incentive to become a "professional expert witness". Predictably, the trial bar gets incendiary over this claiming doctor's want to intimidate their peers into not ever cooperating with tort or med-mal cases (a la the "blue line" about cops testifying on other cops).

Missiouri doctor, John Hagan M.D., wrote a blurb about the serial expert witness industry "testimony tart" in his blog saying:

For the right price these mendacious individuals will find malpractice in almost all of the cases they are asked to review. They serve exclusively the plaintiff’s bar. Known variously as “hired guns” or (my favorite) “testimony tarts”, they not infrequently earn millions of dollars per year.
Most are driven by base greed and avarice; a few are motivated by delusional standards of excellence and perfection that they think they alone practice and can determine. Their names and credentials are shilled in legal publications, over the web or through procuring agencies. Hometown physician colleagues are frequently unaware of the hired gun’s sordid and sub rosa activities.
What’s the going rate for a top testimony tart? Try $1000-1500/hour to review records, for trials or depositions $10,000-15,000/day, first class airline or private jet travel, limousine service, suite of rooms at the best hotel, expensive gifts at Christmas and, for the most egregiously corrupt, a contingency fee based on a favorable verdict and large judgment. Some allegedly guarantee their testimony will result in a big settlement or guilty verdict.

In doing some research on this, I found reference to this going back to a New York Times article in 1897 (!), which reported that The Committee for Remedial Legislation in Regard to Expert Testimony called for all physician witnesses to be paid by the county rather then lawyers or prosecutors so as to remove potential bias. It seems we're still trying to get our hands around this issue 110 years later.





rob

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The New York Times chronicles the massive success of Texas' tort reform efforts have had on the climate for medical practice in their state. They've answered one of those "Who's buried in Grant's tomb?" stupid questions about the real-world positive effects of tort reform on medicine. Since 2003, when sensible med-mal caps for non-economic damages were enacted, Texas has seen an increase of nearly 20% of Physicians becoming licenced there. This includes a disproportionate number of critical specialists including 186 obstetricians, 156 orthopedic surgeons and 26 neurosurgeons.

For pain and suffering Texas patients can sue a doctor for no more than $250,000 each. Plaintiffs can still recover economic damages, like the cost of medical care or wages, but the amount they can win was capped at $1.6 million in death cases. Those are numbers I think most people consider reasonable, especially when the primary goal of the med-mal system is not to be some punative wealth-redistribution process.

As a result of these, the average malpractice premium reduction physicians has seen is 21.3%, and I suspect for some of the surgical specialties it may in fact be much more then that. It's hard to argue against that as more evidence of the correlation between tort reform and the malpractice crisis unless you're a trial lawyer.

Rob

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Instant Karma meet one John O'Quinn, attorney-at-law of Houston, TX. Mr. O'Quinn is best know as the shake-down artist who fleeced several implant manufacturers in the 1990's for a billion dollars +(USD) over the since dismissed claims of diseases allegedly caused by silicone breast implants. O'Quinn's total attorney fees while his firm represented the plaintiffs was over $260 million.


It seems like a only quarter of a billion dollars was not enough for counselor O'Quinn, who was stung Friday with a judgement for (with interest) nearly $60 million dollars for defrauding his clients with irregular (and undeclared) attorney fees as well as bogus and phantom expense reports.

O'Quinn was a particularly nauseating player in the late "silicone crisis" phantom menace that was driven to ridiculous heights by O'Quinn et. al. To this day his breezy attitude toward the truth (or as best we understand the truth on breast implants) represents the worst stereotypes of the American trial lawyer., ie. "Never let truth get in the way of a class action payday".

In lawsuits against the since bankrupted Dow Corning, O'Quinn made ridiculous leaps of logic during arguments with an over the top closing statement urging jurors to ignore the science and instead rely on “common sense, circumstantial evidence,” and post hoc ergo propter hoc (If "x" happened it must be from "y") reasoning. America, being the home of jackpot justice, rewarded these lawyers with staggering wealth.

From the Houston Chronicle:

An arbitration panel Thursday ordered O'Quinn to pay at least $35.7 million to more than 3,000 former breast implant litigation clients for collecting improper fees. The award includes $10.7 million in improper fees and a $25 million
penalty, the panel said.

The 3,000-plus women joined in a 1999 lawsuit claiming O'Quinn took funds from their settlements for group charges they had not agreed to pay. One of their lawyers estimated that with interest and lawyer fees, O'Quinn could pay up to $60 million out of his estimated $263.4 million in fees from the implant litigation.

$60 million, huh. Couldn't happen to a nicer guy.

Rob

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There is a real crisis bubbling up through the American health care system in re. to how the Emergency Room is covered by surgical specialists. In 2006 the Institute of Medicine issued a report "Emergency Medical Services at the Crossroads" which highlighted this growing problem. I've been thinking about how to talk about this for months, but a few snap shots from articles in print this week speak louder then my words.

From US News & World Report comes "E.R. Help Needed Stat!" which gives some context to the problem. As the burden and liability of ER coverage by Doctors goes up while reimbursement has plummeted, you're seeing a predictable withdrawal of physicians willing to provide coverage. Most notably neurosurgery, orthopedics, and plastic surgery coverage is getting harder and harder to maintain for many hospitals.

"Emergency rooms depend on specialists to come in at any hour, any day, to, say, treat stroke victims or reattach fingers severed in an accident. But "specialists just don't want to cover emergency rooms anymore," says Dr. Loren Johnson. Earlier this month, he coauthored a study published in the online edition of the Annals of Internal Medicine reporting that nearly half of Oregon's hospitals cannot provide emergency on-call treatment around-the-clock in at least one specialty. A recent survey of emergency departments throughout the Southeast showed that 54 percent had to divert patients to another hospital because they didn't have the appropriate specialist on call....The Joint Commission, hospitals' major credentialing body, has cited lack of specialists as the cause of 21 percent of emergency department "sentinel events"—unexpected deaths or serious injuries due to slow treatment.

There were about 114 million visits to ERs in 2003, a 26 percent increase over the previous decade. During that same period, about 700 hospitals closed. But the number of surgeons in the country remained the same. "

These pressures have led to many specialists excluding areas involving trauma or emergent care from their practice to focus on elective surgical practices. These aren't "greedy" doctors, but they're frustrated caregivers who've watched the for-profit insurance industry strip-mine health care while recording record profits while simultaneously being squeezed by the feds who seek to contain health care cost with persist ant cuts in medicare fees. An AMA survey, released last week, showed that most doctors -- up to 77 percent -- would limit the number of new or existing Medicare patients they would accept if the cuts are made. The double whammy here is that private insurers, never one to leave money on the table, adjust their rates down to index medicare. You've also got the spectre of the malpractice free-for-all which affects both the economic & psychologic practices of medicine.

In Plastic Surgery the recusal from uncompensated ER call this has been facilitated by the increase in outpatient surgery which is flourishing outside of hospitals (which usually require some kind of obligation for ER call if you want to operate there. )

From the editorial page of the June 11,2007 Tampa Tribune titled "Running Doctors Out of the Emergency Room" which is discussing a recent med-mal case there when a woman who had a tummy-tuck nearly a month before, showed up with a late infection to the ER in septic shock which eventually required amputation of multiple extremities. A Plastic Surgeon (who wasn't her doctor) who was covering the ER and came in to drain her abdomen while calling in multiple specialists to try and save her life, got dragged into a $30 million plus malpractice verdict. Every report on this suggests appropriate care was given, but Florida's most notorious and successful ambulance chaser persuaded a jury that someone must pay for this unfortunate event, even when no clear malpractice is present.

I am writing this as a warning to readers who may at some time seek emergency medical care at one of our area hospitals. You may find that there are no doctors to treat your injuries from a car or motorcycle accident, a burn injury, head trauma or severe medical illness. Just as 'video killed the radio star,' plaintiffs' lawsuits filed when there are bad outcomes, rather than true malpractice, will keep qualified specialists from taking 'call' in emergency rooms.

My case in point is the recent decision by a jury to award Sally Lucia $30 million for the loss of her legs and fingers. Tragic, yes. A result of malpractice? I don't think so. I admit that I don't have all the facts presented by both sides, but I have spoken to Dr. George Haedicke, the surgeon on call, who was found to be 20 percent liable for a total of $6 million. Mrs. Lucia had a tummy tuck in early 2001 and had problems following surgery. Apparently, the plastic surgeon who did the original abdominal surgery told her to go to the emergency room if she had problems, which she did on Super Bowl Sunday in 2001.

The surgeon also happened to be in South Florida at the time she went to the ER.Dr. Haedicke was on call for Memorial Hospital and came in to see her. He evaluated her, drained her abdomen, ordered antibiotics and consulted four other physicians (who were also sued) to evaluate her condition. Her own surgeon returned to Tampa later that afternoon to assume care. Dr. Haedicke had seen her for a total of five hours.

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Found a thought-provoking editorial in The American magazine, titled "Second Thoughts on Breasts." which summarizes some of the history of regulatory issues with silicone implants. The effects of this on the corporation and employees of Dow Corning(which was sued out of existence)are touched upon nicely. It's ironic that if Dow had waited about 15 months (when the first of the large studies not finding links between silicone and disease was published by the Mayo Clinic) they would have not had to pay a dime of the multi-multi billion dollar settlement.

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Two articles in today's Wall Street Journal provide an interesting lesson in the way the trial lawyers treat medical device issues.

The first article,"Panel Supports Drug-Coated Stents " describing the conclusions of an FDA advisory panel on drug-eluding stents (small metal tubes which prop open clogged arteries) which have the potential for keeping arteries open longer then the traditional bare metal stents. An issue at those hearings is whether the drug-coated stents are tied to a small but significant danger of potentially deadly blood clots. This is still being sorted out, but most feel these types of stents have saved a significant number of lives and it is likely there will be more refined indications on who benefits more or less from using these.

Adjacent to this is an article titled "Stents are Galvanizing the Plaintiff's' Bar"

Some patients and lawyers aren't waiting (for studies)to file lawsuits, claiming manufacturers of the devices failed to warn them of the possible clotting risks, and of a severe itching problem caused by a hypersensitive reaction they allege can develop after stent implantation

The case comes amid a surge of lawsuits against pharmaceutical and medical device companies. The shift has taken place as massive lawsuits against tobacco and asbestos companies have dried up....

So as the perpetual feeding trough of the asbestos issue is disappearing, you can see each & every drug and device being eyed as the next cash cow for extorting settlements from industry. If the silicone breast implant debacle of the early 1990's taught us nothing, it's that science should not be established by lawyers in a court but by researchers in clinical trials. Does the plaintiff bar actually care about the truth in these cases as they're furious registering sites like www.harmedbycoatedstent.com to recruit clients?

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