Healthcare: News and Commentary: MedWatch

Doctors cannot rely on the law to protect sensible decisions. Legal fear is eroding the quality and availability of healthcare in America. Common Good's MedWatch collects recent news and commentary reflecting on this trend.

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Weak Oversight Lets Bad Hospitals Stay Open
Alex Berenson, New York Times, December 8, 2008

In late 2006, a New York State commission recommended that University Hospital be scaled back and merged with another hospital due to its substandard care.  Despite these facts, University Hospital remains open.  The state’s inability to follow through on that plan for University demonstrates how hard it can be to close or shrink hospitals, even when there is evidence they are providing costly and below-average care.  Unlike some other nations, including France, the United States has no federal agency charged with hospital oversight.  Any effort to maintain national standards is left largely to Medicare and the Joint Commission, a nonprofit group.  University Hospital was not closed and did not suffer financial penalties because of its ties to the community.  The hospital’s unions paid for television ads, lobbied lawmakers, and filed a lawsuit to overturn the recommendations.  Dr. Berwick, the president of the Institute for Healthcare Improvement, a national nonprofit group trying to reduce hospital mistakes stressed that “we need to act with more speed and diligence to stop practice where it’s actively harmful…let the needs of patients come first, not the needs of a hospital.”  » article

Malpractice Screening Debated
Annmarie Timmins, Concord Monitor, December 7, 2008

Doctors and attorneys in New Hampshire continue to disagree over the effectiveness of the state’s medical malpractice screening process.  In 2005, New Hampshire joined 16 other states when it adopted medical malpractice screening panels.  The panels -- which are chaired by a retired judge and include a doctor and attorney -- screen every medical malpractice case that's filed in court.  After the panel hears the facts of the case, the three members vote in favor of the plaintiff or the doctor.  Doctors and their lawyers claim the screenings not only save money and time by encouraging lawsuits to settle, but also keep meritless claims from juries.  Attorneys representing injured patients, however, complain that just the opposite is happening.  The intent of the law was to contain the climbing cost of medical malpractice insurance by containing the legal expenses of fighting lawsuits.  The law requires the panels to convene within 6 months of filing, yet lawyers are treating the proceedings no differently than a jury trial and taking 15 months to ready the panels.  Anecdotal evidence seems to show that the panels can be cheaper and achieve faster resolutions than full jury trials.  State officials tracking the impact of the screening process say they need more time and information to determine its efficacy. » article 

British Balance Gain against the Cost of the Latest Drugs
Gardiner Harris, New York Times, December 3, 2008

How much is life worth saving?  The British government created the National Institute for Health and Clinical Excellence, NICE, a decade ago to ensure that every pound spent buys as many years of good-quality life as possible.  Many argue, however, that the institute is frequently rejecting expensive treatments and preventing patients from accessing the best care.  With U.S. medical costs expected to reach 25 percent of the nation’s gross domestic product in 2025 from 16 percent, some wonder if NICE’s cost saving methods should be applied in America.  The institute, which includes 270 doctors, economists and pharmacists, researches various medical techniques and determines which ones are the most effective and cost efficient.  Their research creates guidelines and consistency, but denying costly treatment also raises moral questions regarding patient care.  » article

New Report Shows Slower Premium Growth, But Increasing Pressure to Address Waste
Market Watch, December 3, 2008

In its third report on America’s health care system, Pricewaterhouse Coopers (PwC) on behalf of America's Health Insurance Plans (AHIP), examines the causes of rising health care costs and analyzes how health insurance premium dollars are being spent.  The report, "The Factors Fueling Rising Healthcare Costs 2008," finds that higher costs, increased utilization and waste in the health care system continue to fuel underlying health cost increases.  Karen Ignagni, President and CEO of AHIP,  views these findings as catalysts for improvement: "Once again PwC's report demonstrates that we have made strides in lowering costs, but more must be done to make health care more affordable and eliminate waste in the system.”  The report found that 87 cents out of every premium dollar go directly towards paying for medical services.  Embedded within the 87 cents are the costs of medical liability and defensive medicine, which are estimated to be ten cents of the premium dollar.  The report outlines efforts to reduce waste such as increasing standardization and transparency; improving research on comparative effectiveness of treatments; reforming the medical liability system; promoting value based reimbursement; and enhancing health information technologies.  » article

Pushing Past the Placebo: Legislating for a New Kind of Clinical Trials
Geri Aston, AMNews, December 1, 2008

Physicians, insurers and consumer groups widely agree that not enough comparative effectiveness data exist on pharmaceuticals, medical devices and procedures.  The Food and Drug Administration’s approval process primarily tests new drugs against placebos and not against other treatments.  Proponents of comparative effectiveness claim that comparing the effects of similar drugs and treatments will help to improve quality and lower costs.  Doctors searching for the best treatment for their patient face many obstacles: an overwhelming amount of data, insufficient time to research new treatments, and persuasive drug reps with a conflict of interest.  A comparative effectiveness institute would provide independent and consolidated research.  » article

U.S. Not Getting What We Pay For
Ceci Connolly, Washington Post, November 30, 2008

The outlook for health care in the U.S. is grim.  Leaders and experts in the field widely agree that the country spends far too much for substandard care which is frequently wasteful and even dangerous. "There is more than enough money in the system," said former House speaker Newt Gingrich. "We just are not spending it well." It appears that Congress need only to consult with the field's experts and researchers - they generally agree on the broad outline of system reforms.  A high-performance 21st-century health system, they say, must revolve around the central goal of paying for results. That will entail managing chronic illnesses better, adopting electronic medical records, coordinating care, researching what treatments work best, realigning financial incentives to reward success, encouraging prevention strategies and saying no to expensive, unproven therapies.  Ideally, doctors and patients armed with comparative-effectiveness data could make more rational decisions -- such as whether to choose a more expensive, but therapeutically equivalent, medication. » article

As Hospital Infections Spread, So Do Medical-Malpractice Lawsuits
Sylvia Hsieh, Maryland Daily Record, November 30, 2008

As the rates of deadly hospital infections have been on the rise in recent years, lawsuits charging hospitals with negligence have become more common.  Recently, there have been several large awards to individuals or families of individuals who have suffered from hospital-acquired infections.  Such infections used to be considered a risk that hospitals could do little to prevent, yet recent studies have shown that strict hand-washing and safety protocols can reduce the risk of infections to near zero.  The Joint Commission recently released a compendium of strategies for avoiding infections, detailing specific actions and protocols which hospitals can implement.  Implementing these best practices can help to reduce both lawsuits and infections.  As with health courts, using the information gained from frequent lawsuit claims can help to stem future injuries.  » article

The Minimal Impact of a Big Hypertension Study
Andrew Pollack, New York Times, November 28, 2008

In one of the biggest clinical trials ever organized by the federal government, a committee nicknamed Allhat found that when treating high blood pressure, generic pills that cost only pennies a day and work better than newer drugs up to 20 times as expensive.  Yet the study, completed six years ago, has done little to increase the use of generic pills for hypertension.  A confluence of factors blunted the study’s impact.  One was the simple difficulty of persuading doctors to change their habits.  Another was the response from pharmaceutical companies, who began heavily marketing their own expensive hypertension drugs and releasing their own clinical trials proving their treatments were paramount.  Dr. Carolyn M. Clancy, director of the federal Agency for Healthcare Research and Quality, said providing doctors information is “necessary, but not sufficient” to urge them to change their practices.  The Allhat experience conveys the need for comparative effectiveness research that is independent and consistent.  » article 

Hospital Would Leave OB Patients in the Lurch
Barbara Benson, Crain's New York Business, November 25, 2008

Continuum Health Partners recently announced plans to close obstetric and delivery services at Brooklyn's Long Island College Hospital.  The effect could be disastrous for nearby hospitals who would be expected to absorb LICH's 2300 annual deliveries.  Due to these concerns, the New York Department of Health has so far prevented Continuum from closing the maternity service at LICH.  Citing rising liability costs, Continuum maintains that the practice is unsustainable saying that for every birth, Brooklyn hospitals lose as much as $4,000.  In 2007, LICH’s OB/GYN cases accounted for 12% of the hospital’s discharges, a measure of patient volume, but 33%, or $11 million, of the hospital's total losses. And OB malpractice accounted for $8.8 million, or 40%, of LICH’s $22 million in malpractice insurance costs.  Medical liability reform has been long overdue in the state as Gov. Patterson and the legislature signed a bill this Summer which put off raising rates for another year, hoping that stakeholders might be able to reach some agreement about reform by then.  But no hospitals surrounding LICH want the extra deliveries as they add more liability and diminsh profits.  “We are facing an obstetrical Armageddon,” says Mark Mundy, president and chief executive of New York Methodist Hospital in Park Slope.  » article

Defensive Medicine

Doctors Fear of Lawsuits Tied to Added Costs of $1.4b
Kay Lazar, Boston Globe, November 18, 2008

The Massachusetts Medical Society released a study which outlines the total costs related the fear of medical liability in Massachusetts.  Doctors afraid of being sued frequently order unnecessary tests and procedures to protect themselves from liability - a practice that can become very costly.  Eighty-three percent of physicians surveyed reported that they had practiced defensive medicine and an average of 18 to 28 percent of tests, procedures, referrals, and consultations, and 13 percent of hospitalizations, were ordered to avoid lawsuits.  All told the extraneous costs add up to $1.4 billion in the state alone. "The current liability system is toxic to patient safety," says Mass. Med. Society President, Alan Woodward.  Patients who undergo unneeded imaging tests, for example, may be exposed to extra risk from radiation and allergic reaction to contrast dyes, Woodward said.  Moreover, 38 percent of physicians surveyed said they had reduced high risk procedures or stopped doing them altogether.  Physicians are asking legislators to respond by creating early offer programs of compensation and other reforms to reduce defensive medicine.  » article

Often, Preventative Medicine Means Warding Off Suits
Rachel K. Sobel, Philidelphia Inquirer, September 29, 2008

Dr. Rachel K. Sobel explains how treating patients while attempting to avoid litigation often results in diminished quality of care.  As a medical student, Dr. Sobel learned to keep extensive notation of her meetings with patients, not to provide greater care, but to avoid lawsuits.  Doctors must keep meticulous documentation for the possibility of future legal action.  Dr. Sobel links these fears to a fact ingrained in medical school: “It’s not a matter of if you get sued but when.”  In fact, only 3 percent of physicians will retire from a 35-year career without a claim.  Medical mistakes, however, are not the main reason patients file malpractice suits.  The majority of patients file suits because of poor communication with their physician.  Dr. Sobel, therefore, encourages physicians to spend more time worrying about their patients and fostering a relationship of trust, as opposed to being preoccupied by the fear of litigation.  » article

Defensive Medicine Gets Offensive
Benjamin Brewer, M.D., The Wall Street Journal, September 18, 2008

“Defensive medicine is part of the cost of doing business, and also, unfortunately, a large part of the unnecessary expense of health care,” explains New York physician Benjamin Brewer.  Doctors “play defense” to protect themselves against malpractice lawsuits.  Although ordering extra tests and consults put physicians at ease, they also expose patients to radiation and unnecessary procedures.  Dr. Brewer conservatively estimates defensive medicine accounts for 10% of the waste in his practice.  Beyond economic pain, malpractice fears dictate how physicians practice medicine.  Many doctors turn away the sickest patients to avoid a potential lawsuit. » article

Not What the Doctor Ordered: Lawsuit Fears Drive Doctors to Play it Safe
Steve Eder, Toledo Blade, August 24, 2008

Both The American Medical Association and the Ohio Malpractice Commission believe Ohio is facing a malpractice crisis. Surveys have shown that over 90 percent of physicians admit to practicing defensive medicine—ordering unnecessary tests and procedures—in an effort to prevent lawsuits. Avoiding liability risk can mean extraneous medical tests and higher costs for patients.  The costs of defensive medicine are difficult to gauge, but some estimates argue that it could be as much as $200 billion annually.  Despite recent reforms, including capping damages, some Ohio doctors have relocated to states where their actions will not be dictated by fear of litigation and they can “just practice medicine.” Comprehensive liability reforms are needed such that injured patients are compensated, quality of care is improved, and physicians are able to maintain their practices.  Health courts would offer just such a solution. » article

Massachusetts Doctors Challenge Liability Insurance Analysis
Amy Lynn Sorrel, AMNews, July 28, 2008

A recent study claims that Massachusetts physicians have seen a drop in liability insurance premiums since 1990, when prices are adjusted for inflation.  Physicians believe the study considered limited criteria and that doctors in the state are dealing with some of the worst conditions in years.  A recent article in Health Affairs found that malpractice awards in Massachusetts were fourth highest in the nation and the American Medical Association has said the state is in a crisis.  The Massachusetts Medical Society believes the recent study did not account for a number of factors, including the affects of the threat of lawsuits, defensive medicine and the increased cost of living.  The study did find that premiums had increased for certain high-risk specialists at a rate out of proportion with other physicians.  The study authors recommended a series of reforms including programs to reduce errors and a no-fault compensation program.  » article

Decrease Costs to Increase Care
Dwight K. Bartlett, Baltimore Sun, June 24, 2008

In a recent editorial, Dwight Bartlett describes how the problems facing health care today cannot be solved by simply covering every citizen.  Bartlett points out that health care costs are staggering, and growing faster than the economy itself, and thus most people do not have insurance because it is simply too expensive.  America currently spends 16 percent of its gross domestic product on health care, and yet 30 to 40 percent of that care is wasteful, unnecessary and potentially dangerous.  Moreover, the threat of medical malpractice claims encourages doctors to practice "defensive medicine," spurring them to order costly tests and procedures that may not be medically necessary.  » article

Malpractice Premiums, Rate of C-Sections Rise Together
Kathleen Doheny, Washington Post, May 5, 2008

The rate of Caesarean sections and medical malpractice premiums have risen concurrently, according to new research findings.  The study, based on data from the University of Connecticut, provides a glimpse of the association between litigation and obstetrics care.  “I can’t say one led to the other or vice-versa,” said Dr. Jeffrey Spencer, author of the study.  But he speculates that the cost of malpractice insurance is driving up C-section rates.  “The theory is, doctors are practicing more defensive medicine.  Maybe doctors are fearful of litigation,” he added, perhaps likely to perform a C-section at the first indication of any potential problems.  C-sections accounted for a record 30 percent of all deliveries in 2005, according to the U.S. Centers for Disease Control and Prevention.  “These two papers do nothing more than substantiate what we already know,” said Dr. Marsden Wagner, a former director at the World Health Organization.  One of the driving factors behind what Wagner refers to as the “scandalous” rate of C-sections is that “doctors are afraid of litigation.” » article

Price is High for Preventing Medical Lawsuits
Alexander Strasser, Democrat and Chronicle, March 21, 2008

In this editorial, Dr. Alexander Strasser, a New York internist, describes one of the negative effects the current legal system has had on health care.  The omnipresent threat of a lawsuit has forced doctors to practice “defensive medicine” – the ordering of unnecessary tests and procedures out of legal fear.  In particular, radiologists have become vague in their reports out of fear of being sued.  This often leads to overuse of diagnostic procedures such as CT scans, which are “not medically indicated, but legally necessary.”  When medically necessary, further testing should be done.  “But who decides what is medically indicated?” asks the author.  “Is it the insurance company, the malpractice attorney or the attending physician?”  Because of the current system, doctors have left New York or are refusing to settle there in the first place.  Legal reform is necessary, because the “price for this [current system] is too high and one that society cannot afford.”  » article

Many Doctors, Many Tests, No Rhyme or Reason
Dr. Sandeep Jundahar, New York Times, March 11, 2008

“I recently took care of a 50-year-old man who had been admitted to the hospital short of breath.  During his month long stay he was seen by a hematologist, an endocrinologist, a kidney specialist, a podiatrist, two cardiologists, a cardiac electrophysiologist, an infectious-diseases specialist, a pulmonologist, an ear-nose-throat specialist, a urologist, a gastroenterologist, a neurologist, a nutritionist, a general surgeon, a thoracic surgeon and a pain specialist.”  So begins an article by a New York cardiologist about the problems associated with over testing.  The 50-year-old patient underwent a total of 12 procedures, including a pacemaker implantation and a bone-marrow biopsy, and when he was discharged, follow-up appointments were scheduled with seven specialists.  This case is not atypical in America’s health care system, “where doctors are paid piecework for their services, [and] if you have a slew of physicians and a willing patient, almost any sort of terrible excess can occur.”  Overutilization is caused by many factors such as doctors trying to avoid lawsuits (i.e., “defensive medicine”).  While precise data is lacking, the overuse of medical services likely cost hundreds of billions of dollars last year – a huge portion of the approximately $2 trillion that Americans spent on health care.  And “[a]re we getting our money’s worth?” asks Dr. Jauhar.  “Not according to the usual measures of public health. The United States ranks 45th in life expectancy, behind Bosnia and Jordan; near last, compared with other developed countries, in infant mortality; and in last place...among major industrialized countries in health care quality, access and efficiency.”  » article

Broken Legal System Chasing Doctors Away
Carlos Muhletaler, South Florida Sun-Sentinel, February 26, 2008

A representative from Florida Stop Lawsuit Abuse describes how the current medical malpractice system is ineffective and expensive for all patients, not just those who have experienced medical injury. Physicians, fearful of liability, practice costly defensive medicine and those costs are passed on to the consumers. In Florida, the "three strikes" law - in which physicians' licenses are revoked after three malpractice verdicts - has discouraged doctors from practicing in the state or entering high risk specialty fields. The medical society predicts a 65% shortage of on-call neurosurgeons by 2011. In one doctor's words, "This [law] opened the door to every bogus lawsuit possible. With the sense that we all had bulls-eyes on our back, we left." The author urges common sense liability reform that encourages and protects patient safety, while attracting physicians. Health courts would have significant linkages to patient safety mechanisms and would encourage consistent and fair liability decisions.  » article

Besieged by Scourge of Medical 'Malpractice'
John Maxfield, Naples Daily News, February 16, 2008

In this editorial, an emergency physician in Ohio describes the current affliction of defensive medicine (unnecessary medical tests stemming from legal fear).  “Why not obtain a CT scan on every patient with back pain or, for that matter, perform every test known to medical science on every patient who is ill?  After all, peoples’ lives are at stake,” questions the doctor.  There are two main reasons, he explains.  First, many medical tests are inaccurate to at least some degree.  Furthermore, a test that comes back positive often leads to additional testing.  These tests and procedures are sometimes invasive and many carry the potential for dangerous complications or side effects.  Because of this, “the search for extremely unlikely diagnoses would kill more patients than would missing those diagnoses,” writes the author.  Dartmouth University researchers have shown that “more care is often worse care.”  The second major reason is the sheer cost of defensive medicine.  We must choose where to spend our money, and if we spend it on frivolous tests, we will need to decrease spending in other areas (e.g., national defense and public education).  “[S]ome of my younger colleagues, paralyzed by the fear of being sued, regularly spend $2,000 to diagnose a cold,” notes the writer.  Our nation has to make a choice when it comes to our medical malpractice system, “[a] chance for good and efficient medical care for the many or a stacked lottery for the few.” » article 

Medical Testing, Dealing with Uncertainty
Joe Pellicer, The Olympian, January 28, 2008

One physician describes how the fear of liability is affecting the way doctors practice medicine.  Many patients believe more testing leads to better care, and physicians have responded by ordering up expensive tests to satisfy patients and protect themselves from liability claims.  Medicine is not always an exact science and there is always the possibility that a diagnosis is wrong, despite all the symptoms or tests.  Physicians now rely heavily on testing and defensive medicine has become a costly and ubiquitous feature in the field. » article

Biggest Factor in Rising Health Costs are the Doctors Themselves
Steve Cole, Dallas Morning News, December 17, 2007

Dr. Steve Cole, a staff physician at Baylor University Medical Center, writes that a primary factor involved in the rising costs of health care is the doctors themselves.  This is because physicians are “ordering more tests, prescribing more medications and requesting more consultations with specialists.”  The problem is exacerbated by the fact that many of these procedures and medications can lead to expensive and potentially dangerous complications (e.g., surgical complications, side effects from drugs).  One major reason cited is that doctors possess “an intense fear of litigation.”  Medical students are often reminded about the potential for lawsuits in response to a missed diagnosis.  In order to avoid such litigation, doctors have a propensity to practice “defensive medicine, ordering [many tests] and requesting a multitude of additional consultations.” » article 

Defensive Medicine: Cautious or Costly?
Wyatt Andrews, CBS News, October 22, 2007

Recently, a sophomore at the University of Richmond went to the hospital with a simple stomach ache and came out with an $8,500 bill for a barrage of expensive imaging tests.  Doctors found a harmless cyst, something that could have been diagnosed for a fraction of the cost.  This is yet another example of what many physicians term “defensive medicine” – needless procedures driven by legal fear.  Some experts estimate the annual cost to the nation is over $100 billion.  These costs are passed on to patients, even those with insurance, often through rising deductibles and co-payments.  “Defensive medicine is bad medicine,” says Dr. Kevin Pho.  “There’s no doubt in my mind this is a significant driver in health care costs today.” » article

Report: Americans Get Too Much Treatment
David Schepp, The Journal News, October 13, 2007

Medical technology has made great improvements to both quality and length of life.  However, a new report says some of these tests are overused.  “Unfortunately, much of what is spent on health care is for services that are not needed or, worse, are harmful," said Dr. Janet Sullivan, chief medical officer at Hudson Health Plan.  “One of the reasons for that...stem[s] from liability insurance,” said Dr. Michael E. Rader, medical director at Nyack Hospital.  Health care providers are apt to order unnecessary tests and procedures out of legal fear.  These costly tests result in needless medical expenses.  One physician who did not concur with all of the studies findings still agreed that there is “tremendous waste” in the nation’s health system. » article

We're Beating Ourselves in the War on Germs
Lauren Myers, The Arizona Daily Wildcat, September 25, 2007

Antibiotics have saved countless lives since the discovery of penicillin in 1928.  However, overuse has facilitated the evolution of drug-resistant strains of microbes.  In 1995, 70 percent of the 1.7 million hospital-acquired staph infections were caused by drug-resistant bacteria.  Many doctors routinely prescribe antibiotics in inappropriate circumstances.  This misuse contributes to the growth of germs that are impervious to treatment.  One reason that doctors unnecessarily prescribe antibiotics is defensive medicine.  Legal fear motivates doctors to “insulate themselves from potential lawsuits,” bringing us closer to a “post-antibiotic age.”  » article

Med Student Struggles to Preserve Her Idealism
Emily Breidbart, CNN, August 16, 2007

One medical student describes the new era of healthcare, one in which costs dictate the way doctors practice medicine and temper enthusiasm.  Students are taught how to keep patient visits brief and efficient, and how to use defensive medicine to protect themselves from litigation.  “We are trained what kind of patients to be wary of. Basically, we are taught that we can't trust our future patients, which is confusing to first-year medical students. How can we expect our patients to trust us if we can't trust them?” writes the student.  The author further describes how the preceding generation of physicians advised her and her fellow students against pursuing a career in medicine.  The costs, bureaucratic challenges, and struggles with insurance companies all mean that doctors are practicing less medicine and spending more time dealing with administrative issues. » article

A Trip to the Hospital Shouldn't Leave the Patient with "Bill-itis"
Mike Wilkes, Sacramento Bee, August 4, 2007

One young teacher’s emergency room experience is an unfortunate example of how the fear of liability is directly influencing patients. Following the advice of her doctor, the young woman went to the ER to seek treatment, imagining her health insurance would cover her needs. After several hours, a battery of tests and procedures (many deemed unnecessary), she left the hospital without a diagnosis after filling out several medical malpractice liability waivers. What she did leave with was a mammoth $11,000 bill. Next time she gets sick she says she’ll need to be on death’s door before even thinking about a trip to the emergency room. Some estimate that defensive medicine costs billions each year, and patients often foot the bill. » article

Caesareans are Used in a Quarter of All Births
Daniel Martin, Daily Mail, June 26, 2007

A recent study indicates that 23.5% of births in the United Kingdom were by caesarean section in 2005-06.  The reasons cited incldue, “[t]he compensation culture [which] may also be to blame. A recent survey indicated that many doctors carry out more caesareans than in the past because of fear of litigation if a natural birth goes wrong.” » article

What's Up, Docs?
Robert Kolker, New York Magazine, June 18, 2007

A panel of top New York physicians sat down with a New York magazine author to discuss aspects of the medical profession. The doctors discussed everything from mistakes they have made to what makes a good doctor or patient, to the real effects of defensive medicine for patients.  The doctors describe defensive medicine and the fear of liability as being one of the greatest problems doctors face today in practicing good, accurate medicine.  “Overall, malpractice has made good doctors worse rather than bad doctors better because of the fear that you’re missing something and you may be sued for missing a diagnosis. So someone has back pain. You could diagnose a stiff neck with 95 percent certainty, but there’s a 5 percent chance that he could have cancer or a serious infection, and instead of going with your gut, you order a bunch of extensive tests to rule out the improbable,” said one physician in the interview. » article

More Doctors Return to Old Philosophy on Caesareans
Jennifer Boen and Nic Pyle, News-Sentinel, April 20, 2007

Hospitals continue to tighten their policies on VBACs (vaginal birth after a previous cesarean section) due to liability concerns.  article » 

Fear of Lawsuits Means Fewer Radiologists Read Mammograms
Diane Cochran, Billings Gazette, March 18, 2007

In a growing trend, radiologists across the country are refusing to read mammograms, and fewer medical students are opting to specialize in mammography, in part because of legal fear.  Dr. Leonard Berlin, a medical school professor in Illinois, said: "[t]here's no question the fear of malpractice litigation does dissuade many radiologists from reading mammograms.”  According to the Physician Insurers Association of America, a trade group of medical malpractice insurance carriers, missed breast cancer is the most common basis for medical malpractice lawsuits in the United States, and it is also among the most expensive kind of malpractice cases. “In a seven-year period ending in 2002, PIAA members spent almost $200 million on breast cancer malpractice cases. That was $30 million more than was spent during the previous six years.”  According to some, part of the problem is that mammography has been “oversold” as a perfect diagnostic technique, when in reality it is not a foolproof test. article »

Risk, Malpractice Fears Push Bay State C-Section Surgeries
Jessica Fargen, Boston Herald, January 24, 2007

The Massachusetts Department of Public Health reports that use of C-sections continues to increase in the state.  Almost one third of Massachusetts’ births in 2005 were by C-section.  Dr. Dale Magee, president-elect of the Massachusetts Medical Society, said that “doctors are under pressure to exhaust every delivery option available, often including C-sections, because of malpractice worries.”   article »

What’s Making Us Sick Is an Epidemic of Diagnoses
H. Gilbert Welch, Lisa Schwartz, and Steven Woloshin, New York Times, January 2, 2007

A New York Times essay bemoans that an epidemic of diagnosis is the biggest health threat facing most Americans. Our legal environment, which punishes physicians for failure to diagnose, is feeding this epidemic. “While failing to make a diagnosis can result in lawsuits, there are no corresponding penalties for overdiagnosis. Thus, the path of least resistance for clinicians is to diagnose liberally — even when we wonder if doing so really helps our patients.” Physicians are prescribing medicine for physical or emotional symptoms that used to be considered part of everyday life, and there is a trend of diagnosing disease early before the onset of symptoms. “Most of us assume that all this additional diagnosis can only be beneficial. And some of it is. But at the extreme, the logic of early detection is absurd. If more than half of us are sick, what does it mean to be normal?” More importantly, the epidemic of diagnoses creates an epidemic of treatments, and we know that almost all treatments involve risks for patients’ health. article »

Ariz. ERs Face Patient Crunch, Staff Shortages
Jodie Snyder, Arizona Republic, August 14, 2006

Jodie Snyder of the Arizona Republic recently shadowed Dr. Todd Taylor on his last emergency room shift at Phoenix’s Banner Good Samaritan Medical Center.  She writes: “The Arizona Republic has identified at least 15 doctors who left this year or who say they’re leaving.  Todd Taylor is one of them, fed up with employee shortages and too many liability-driven precautions and delays.”  These liability-driven precautions become evident with Dr. Taylor’s first patient – a female diabetic with high blood pressure, complaining of a severe headache.  After examining the woman, Dr. Taylor heads to the nurses’ station to write out orders, implementing what he calls "the most expensive instrument in medicine: the doctor's pen."  The orders that he writes total more than $500 for the visit.  While "Taylor worries that he orders tests that are unnecessary, costly and time-consuming . . . every patient who comes into the emergency department is a pop quiz, with huge consequences for the patient and Taylor, if he doesn't find the right answers."  Taylor tells Snyder that although multimillion-dollar verdicts against ER physicians are not common, "hearing about them makes emergency doctors nervous." article »

Malpractice Lawsuits Spurring Growth in 'Defensive Medicine'
Tracey Birkenhauer, Ann Arbor Business Review, June 22, 2006

“Even though medical malpractice filings are down [in Michigan],” writes Tracey Birkenhauer of the Ann Arbor Business Review, “the litigious environment in which doctors operate has tempered the way they practice medicine.”  “[D]efensive medicine,” one Michigan doctor tells her, “dictates much of today’s standard of care.”  The Michigan State Medical Society, Birkenhauer notes, has put forward several proposals to reform the state’s malpractice system, including the idea of instituting a system of special health courts. article »

Doctors Order Needless Tests, Say Experts
Lee Bowman (Scripps Howard News Service), Seattle Times, May 20, 2006

According to a new study, “[n]eedless medical tests,” possibly prompted by fear of malpractice lawsuits, “are costing the U.S. healthcare system potentially billions of dollars a year and are adding unnecessarily to patient stress.”  The study found that “at least one of three common exams -- urinalysis, electrocardiogram and X-rays -- was inappropriately ordered for 43 percent to 46 percent of the patients.”  The cost of these unnecessary procedures is projected at $47 to $194 million annually.  Dr. Dan Merenstein, an assistant professor of family medicine at Georgetown University Medical Center and lead author of the study said that "[m]any physicians, as well as their patients, appear to believe that a routine health exam should include a number of tests they feel can screen for unknown diseases, but the evidence shows that some of these tests are less than beneficial when used in this way."  The study cites malpractice fears as one reason why physicians may be ordering the extra tests. article »

NJ Among Highest in C-sections
Jessica Adler, Herald-News, May 9, 2006

“This is all fueled by an absolute paranoia of being sued," explains Dr. Roger Kierce, chairman of the department of Obstetrics and Gynecology at St. Joseph's Regional Medical Center in Paterson, commenting on the rising rate of C-section births both in New Jersey and nationwide.  The rise, he relates, is the result of doctors practicing defensively: "It's terrible.  Things we would have sat on 10 years ago and (performed vaginal births for) – kids who end up doing great – will go to C-Section these days because of the lawsuits."  C-sections accounted for 29.1% of all births in 2004, up 40% over eight years.  At over 33%, New Jersey had the highest national rate in 2004 – since 1999, the statewide rate has increased by 6% a year. article »

Doctor Says Big Medicine at Core of Health-Care Crisis
Kim Trigilio, Beverly Citizen, April 20, 2006

In a new book, A Pediatrician’s Journal: Caring for Children in a Broken Medical System, pediatrician Dr. Brian G. Orr “takes aim at … practicing medicine under the constant threat of malpractice lawsuits.”  “What people want and need is a connection with their doctor,” he states.  “Yet there are pressures in the healthcare system, that decrease the value of that."  One such pressure is doctors’ need to practice “’defensive medicine.’”  Orr argues: “It is one of the biggest costs in medicine that no one ever talks about.  We have to order an MRI just to prove they don’t have a brain tumor, even though we know they don’t."  He relates how he was once sued by the mother of an autistic child for allegedly providing her poor breast-feeding counseling – and even though he won the suit, he explains that “[i]t is a horrible thing to go through.  You doubt yourself and practice more defensively. …  It was five weeks of torture defending myself, all because of the power of the people bringing the suit."  Moreover, he explains, our current medical justice system stymies communication between providers, endangering patient safety:  "Nobody wants to admit that they made any mistakes.  It is not an environment where you can talk about what works and what failed.  Practices become more secretive.  You don’t want to open yourself up to criticism that can lead to a lawsuit."

Don't Take This Lying Down
Sarah Bilston, New York Times, March 24, 2006

In an opinion piece questioning the wisdom of prescribing bed rest to women with complicated pregnancies, Sarah Bilston, a professor of English at Trinity College, relates that “doctors in other counties are far less likely to prescribe it.”  Judith Maloni, a professor of nursing at Case Western, theorizes that part of the reason 92% of U.S. doctors prescribe some form of bed rest is because of legal fear.  Bilston writes, “Bed rest convinces patients and doctors alike that everything possible is being done to sustain a difficult pregnancy.  And it is, after all, cheap to prescribe.” opinion »

Placentas Taken, but Moms Were Not Told
Susan Goldsmith, Oregonian, February 12, 2006

According to a recent report in the Oregonian, legal fear drove some hospitals in Oregon, Washington, and California to take the drastic – and some say unethical – step of registering placentas with “a Portland institute created and financed by the insurance industry, in part to help health care providers defend against birth-injury lawsuits.”  Between 1996 and 2003, around 700 placentas from difficult births were sent – often without the mothers’ knowledge – to the Cascadia Placenta Registry for analysis.  Legal experts argue that the practice did not violate state or federal laws, but leading ethicists criticize the fact that many providers did not seek explicit permission to analyze the placentas, and that the registry was maintained by an organization financed by the insurance industry.  “‘If you're going to take things from patients – extract DNA or use them as potential sources of defense in litigation – subjects have an absolute right to know that and must consent or not,’” argues one medical ethicist.  “‘To have insurance companies collecting this stuff is very problematic.’”  It was done, a former executive of one of the registry’s primary underwriters argues, because birth-injury cases have become “‘a huge lottery.’”  “‘Errors are made, and families should be compensated,’” he explains.  “‘But there are other cases where it’s quite clear – particularly with cerebral palsy – that they are not due to malpractice.  But you have such a sympathetic witness with the damaged child that emotional awards are made out of proportion to fault or the damage done.’” article », editorial »

Doctors' Delicate Balance in Keeping Hope Alive
Jan Hoffman, New York Times, December 24, 2005

In an article examining doctors’ use, or lack thereof, of “[t]he language of hope” when dealing with the critically ill, the New York Times relates that legal fear may be contributing to some doctors’ preference for painting the bleakest picture possible for their sick patients: “Now, whether a patient comes in complaining of a backache, a rash or a lump in the armpit, many doctors interpret informed consent as the obligation to rattle off all possibilities, from the best-case to worst-case situations.”  The article goes on to quote a Stanford medical school psychiatrist who states, “’There are doctors who paint a bleaker picture than necessary so they can turn out to be heroes if things turn out well, and it also relieves doctors of responsibility if bad things happen.’” article »

More Women Choosing Caesarian Births
Jacob Goldstein, Fort Wayne News Sentinel, December 9, 2005

The threat of lawsuits is cited by many South Florida doctors as “the most important factor driving local C-section rates above national averages.”  While the national average reached a new high last year, with 29% of newborns being delivered by C-section, the percentage in South Florida was an all time high as well – at 37%.  And while C-sections, generally, can result in greater complications during birth, it is because those complications “tend to be associated with the mother, not the baby” that lawsuits arise.  “‘When the expectations for the outcomes are so high that anything less than the perfect outcome is unacceptable, the tendency is always to want to go back and say, ‘If a C-section had been performed …’,’” says one Hollywood, FL obstetrician.  He adds, describing why many doctors, despite the risks to the mother, opt for performing C-sections over vaginal births, “In South Florida we are obviously in a very litigious environment. … The thing that makes a difference here is the fear of litigation.”

Specter of Medical Liability Creates Enormous Cost
Op-ed, Olympian, November 28, 2005

Illustrating how the practice of “defensive medicine” raises the cost of health care, a recent piece in the Olympian recounts the case of a construction worker who went to a Washington State hospital complaining of jaw pain, after falling 20 feet from scaffolding, and did not leave until after an estimated $20,000 worth of tests had been performed on him.  The man's attending physician (the author of the piece) confirmed a diagnosis of a broken jaw, and says that the ensuing CAT scans and additional tests performed after the diagnosis – and over his objections – were the result of “a broken system driven by fear.”  He writes, on the additional tests and our current medical liability system, “I am certain no one thought that these tests would add to this patient’s care, but everyone felt relieved of their liability risk.  The shroud of medical liability is strangling all of society in more ways than most anyone knows.  This case is an example of what occurs daily in every ER and doctor’s office throughout our country."

C-Sections in the U.S. Are at an All-Time High
Associated Press, Arizona Republic, November 15, 2005

The rate of Caesarean sections in the U.S. has climbed to an all-time high, in part due to malpractice concerns, according to a recent report by The National Center for Health Statistics.  In 2004, 29.1% of all births were Caesarean up from 27.5% in 2003.  This increase comes despite efforts by public health authorities to bring down the number of such deliveries.  Liability concerns have led some hospitals to ban vaginal births for mothers with previous C-sections.  Tonya Jamois, president of the International Cesarean Awareness Network, said "Women are struggling to avoid unnecessary surgery, but the medical system has abandoned them. For many, they have to submit to major surgery in order to get medical care."

ANA: CT Advice From NCI Ignored in the ER
Ed Susman, MedPage Today, September 27, 2005

Research presented at the 2005 annual meeting of the American Neurological Association reveals that despite a National Cancer Institute memorandum advising caution in the use of CT scans for children in the ER, their use has increased, possibly due to malpractice concerns.  Reviewing data from a hospital in West Virginia, researchers found a three-fold increase in the use of CT scans on children in the ER.  The authors posit that the increase may be due to physicians practicing "defensive medicine.” article »

Battle Lines Drawn Over C-Sections
Rita Rubin, USA Today, August 23, 2005

At more and more hospitals, women are being forced to undergo unnecessary c-sections just because they have already had one in the past. Doctors and hospitals say that they fear lawsuits if they allow a patient to have a vaginal birth after a previous c-section--known as a VBAC--and something goes wrong.

"'We think the risk is more of a legal risk than a medical risk,' acknowledges Bob Wentz, CEO of California's Oroville Hospital, which banned VBACs two years ago"

The trend is visible around the country:

• In Flagstaff, Ariz., an obstetrician/gynecologist says she was reprimanded by her colleagues for arranging to do what her own patients could not: have a VBAC at her own hospital.
• In North Platte, Neb., a mother of five delivered baby No. 6 at home after the local hospital suggested that because she had had one C-section, she temporarily relocate to Denver or Omaha--each nearly 300 miles away--if she wanted to deliver vaginally.
• In Oklahoma, most OB/GYNs won't allow patients to attempt a VBAC because their malpractice insurance no longer will cover claims resulting from such births.

article »

Medical Malpractice Concerns Lead to More Breast Biopsies
Radiologoical Society of North America, Press Release, July 28, 2005

Compared to their colleagues in other parts of the world, radiologists in the United States have "higher recall and false-positive rates, possibly due to heightened concern about medical malpractice." In fact, a new survey of radiologists found that "more than half (58.5 percent) indicated that this concern moderately to greatly increased their number of recommendations for breast biopsies, and 72.4 percent reported their concern moderately or greatly increased their number of recommendations for diagnostic mammography or ultrasound. ... 'The majority of women who are called back for additional testing after a screening mammogram do not have any evidence of breast cancer on subsequent evaluation.'"

"Women are extremely anxious about breast cancer. More testing leads to more anxiety among women," said Joann G. Elmore, MD, MPH, associate professor of medicine at the University of Washington School of Medicine and lead author of the new study. "Failure or delay in breast cancer diagnosis is one of the most prevalent and expensive conditions in malpractice claims leveled against physicians. ... A related study published in Radiology found that one-third of radiologists considered withdrawing from interpreting mammograms because of malpractice concerns."

Related: Defensive Medicine Widespread, with Serious Consequences

Fear of Lawsuit Could Put You in Hospital
Angela Stewart, New Jersey Star-Ledger, July 13, 2005

When an emergency room physician is faced with the decision to admit or not admit a patient, the fear of being sued can have a significant impact on that decision. This according to a new study that rated 33 physicians as having a "low, medium or high fear of malpractice suits," and then examined records involving those physicians to determine their treatment of patients with "symptoms suggestive of heart disease." "Overall, the survey found that emergency physicians who had the most fear of malpractice suits were less likely to discharge low-risk patients when compared with emergency physicians with less fear. Patients seen by physicians with high fear of being sued also were more likely to be admitted to an intensive care or observation unit. These doctors were also more likely to order additional testing. ... Of the 7 million people who seek emergency department care for chest pain or other cardiac symptoms like shortness of breath, about half end up hospitalized or admitted to observation units. The majority of those admitted, however, are subsequently found not to be experiencing a heart attack or to have any heart problems. ... This kind of "defensive" medicine only increases health care costs, maintained lead study author David A. Katz."

26% of Births in City are Caesarean Deliveries, Study Says
Marc Santora, New York Times, July 13, 2005

New York City's Public Advocate, Betsy Gotbaum, is taking aim at the high Caesarean rate at some city hospitals. City-wide, the Caesarean rate is 26.4%, about equal to the national average, but nine hospitals report Caesarean rates of over 30 percent. "There is a tremendous risk," in conducting such surgeries unnecessarily," Gotbaum told the Times. The Centers for Disease Control and the World Health Organization recommended Caesarean sections be used "only in cases in which a vaginal birth would put the health of the mother or baby at risk. Such a standard, the groups said, would help reduce the rate of Caesarean sections to the 15 percent they recommend." But as Maureen Corry, executive director of the Maternity Center Association pointed out, "[M]alpractice has a lot to do with [high Caesarean rates]. ... Nobody ever sues a provider for doing an unnecessary C-section." article »

Malpractice Fears Color Mammogram Readings
Kathleen Doheny, Forbes, June 28, 2005

In a recent survey of radiologists, a full 72.4 percent said "their malpractice fears moderately or greatly increased the number of recommendations they made for mammography or ultrasound. More than half (59 percent) said concerns about medical malpractice also moderately or greatly increased the number of recommendations they made for breast biopsy." Among the radiologists who had been sued--about half of those surveyed--81 percent said the experience was "very" or "extremely" stressful. article »

Is Bed Rest Bunk?
Dina Roth Port, Baby Talk, June 2005

"Though 90 percent of obstetricians prescribe bed rest to women with complications that increase the risk for preterm labor, such as high blood pressure, carrying multiples, and vaginal bleeding, no solid studies have ever shown that it's an effective treatment. In fact, according to the American College of Obstetricians and Gynecologists (ACOG), 'bed rest does not appear to improve the rate of preterm birth and should not be routinely recommended.' And yet, doctors continue to do so to nearly 700,000 expectant patients--about one in five--each year. ... Liability and fear of medical malpractice play a role too. 'Obstetrics is a field often subject to inertia--doctors have to be conservative because we're dealing with two patients and there's that much more risk,' explains Charles Lockwood,M.D., chairman of the department of obstetrics, gynecology, and reproductive sciences at Yale University School of Medicine in New Haven, Connecticut."

Malpractice Fears Put Doctors on Defense
Alan Bavley, Kansas City Star, June 1, 2005

"When Geoffrey Blatt went to medical school, he was taught not to order unnecessary tests for his patients. Now, even some patients with headaches get brain scans. 'You're afraid of the one-in-10,000 patient that may have a brain tumor,' the Kansas City neurosurgeon said. And afraid that the patient may sue for malpractice. ... '[Defensive medicine] is so prevalent at this point that it is verging on becoming the standard of care,' Blatt said." Be sure to read about the study on defensive medicine published in the Journal of the American Medical Association. Ninety-three percent of Pennsylvania physicians reported practicing defensive medicine.

Defensive Medicine Widespread Among Physicians in High-Risk Specialties
News-Medical.Net, May 25, 2005

Do doctors practice defensive medicine, and what is the harm if they do? According to a new study published in the Journal of the American Medical Association, "[m]ore than 90 percent of surveyed physicians in Pennsylvania reported defensive medicine practices, such as over-ordering diagnostic tests, unnecessary referrals and avoidance of high-risk patients. ... 'Assurance behavior' such as ordering tests, performing diagnostic procedures, and referring patients for consultation was very common (92 percent). ... Avoidance of procedures and patients that were perceived to elevate the probability of litigation was also widespread. Forty-two percent of respondents reported that they had taken steps to restrict their practice in the previous 3 years, including eliminating procedures prone to complications, such as trauma surgery, and avoiding patients who had complex medical problems or were perceived as litigious."

The authors write, "The most frequent form of defensive medicine, ordering costly imaging studies, seems merely wasteful, but other defensive behaviors may reduce access to care and even pose risks of physical harm. Because both obstetrics and breast cancer detection are high-liability fields, women's health may be particularly affected." article »

Defensive Medicine
Daniel Fisher, Forbes, April 15, 2005

Aspect Medical Systems has created a device that may help prevent anesthesia awareness--the rare but terrifying experience of waking up during surgery to find oneself "[p]aralyzed by powerful drugs yet aware of everything going on." But not all doctors are rushing to embrace Aspect's Bispectral Index Monitor. Some "fear the machine is yet another example of a technological advance that gives doctors useless or ambiguous information in the operating room but can provide a treasure trove of evidence in the courtroom. ... [Doctors] remember the fetal heart monitor, introduced with great enthusiasm in the 1970s as a way to cut down on birth injuries by alerting doctors to fetal distress in time to remove the baby via Caesarean section. Subsequent research has shown the device doesn't reduce the incidence of cerebral palsy, which results in some of the most costly malpractice judgments against obstetricians. The paper record it produces, however, is a virtual script for trial lawyers seeking to convince jurors that somebody screwed up."

Edward Richards, director of Louisiana State University law school's program in public health, told Forbes that the monitor would help physicians, but courts should adopt "a simple change": "Paid experts should see the record as the treating physician did, bit by bit in time order. 'It's actually impossible to judge the physician's behavior fairly when you know the outcome.'"

Doctors Worry Video of Baby's First Moments Could be Legal Weapon
Associated Press, March 21, 2005

Many parents cherish videotapes of their baby's first moments, but worried about lawsuits, some doctors and hospitals are putting restrictions on videotaping in the delivery room. "What once used to be really fun and warm and cozy and so forth is now a potential nail in the coffin from a liability perspective," said John C. Nelson, a Salt Lake City obstetrician. article »

Lawsuit Could Change Pediatric Practice
Michelle Paynter, WTOC-11 (Savannah, GA), March 16, 2005

Doctors at Pediatric Associates of Savannah say they are now "very hesitant" to call in prescriptions without first seeing a child in person--something they used to do regularly for minor ailments like diaper rashes and runny noses. The change in their prescription policy comes after a jury "awarded more than $3 million to a boy who sued Pediatric Associates ... for malpractice," claiming among other things that "his doctors prescribed him medication without seeing him in person." But the change will be hard on some parents. "Especially being a working mom," said Rachel New. "It's difficult to take off and bring them to the doctor, so it would be hard and irritating to not be able to [have the doctor call in a prescription without seeing the child]." And time isn't the only cost to parents: Doctors "will also be referring many of their patients to specialists as an added safeguard. That will cost parents more money." article »

Jersey Delivers Wide Range of C-section Rates
Carol Ann Campbell, Star Ledger, March 5, 2005

Some hospitals in New Jersey have a C-section rate of more than 40 percent, contributing to the statewide average of 33.1 percent--the nation's highest. "Many in the field blame litigation. Doctors fearful of being sued, and already hit with high malpractice premiums, may be quicker to perform the surgical procedure than in the past." The national average C-section rate is 27.6 percent--far too high, according to some activists. "A Caesarean section is major abdominal surgery to deliver the baby. The procedure requires anesthesia and several days in the hospital. A release by the American College of Obstetrics and Gynecology cited a study that found a woman's risk of dying in childbirth was 'significantly' higher with Caesarean, or 35.9 deaths per 100,000 deliveries, compared with 9.2 deaths per 100,000 vaginal deliveries."

A Prescription for Retirement
Jason Main, Newark (OH) Advocate, February 1, 2005

After 32 years as a pediatrician, Dr. John Adams of Newark, OH, is retiring because the cost of liability insurance has "risen to the point that continuing to practice is untenable." Dr. Adams told the Newark Advocate about the troubling realities of unreliable law and defensive medicine: "With the potential of lawsuits hanging over their heads with every patient they see, Adams contends, doctors have become more cautious and conservative in their treatment plans. They are more likely to order lab work or seek the advice of specialists than in the past in order to minimize the risk that patients will suffer unexpected ailments. Any time a patient has an unfavorable result during the course of treatment, there is the potential of a suit being filed, whether the physician is at fault or not, he said. 'It's like holding you to a standard of absolute perfection, which no one can achieve.'"

The Horror of Medical Lawsuits
Thomas Sowell, Human Events, January 25, 2005

Thomas Sowell writes about a two-part test for cancer he underwent several years ago: "The first part was uncomfortable but not painful or with any great risk of infection. After a young doctor had put me through this part, an older specialist took over and examined the results--and he decided not to proceed with the second part of the test. ... [T]he chance that I had cancer was sufficiently small, and the danger of infection from the test itself was sufficiently large, that the best choice was not to go any further." Sowell appreciated the doctor's decision, but he notes, "[H]ow many doctors feel free to make such choices in today's legal climate? ... After so many megabucks awards grew out of claims that babies born with cerebral palsy could have been spared if only the doctor had delivered them by Caesarean section, C-section births rose sharply. But it did not reduce cerebral palsy."

In addition to highlighting how legal fear can sometimes turn the course of treatment away from a patient's best interests, Sowell also notes that our unreliable system of justice is damaging the doctor-patient relationship. "Trust between doctor and patient is not a small thing. Sometimes it can be the difference between life and death. Our laws recognize the enormous importance of that relationship by exempting doctors from having to testify to what a patient has told them, even if it is a murder case. To go to these lengths to protect the doctor-patient relationship -- and then blithely throw it away with easy access to frivolous lawsuits makes no sense." article »

Overuse of Medical Scans Is Under Fire
Vanessa Fuhrmans, Wall Street Journal, January 12, 2005

Medicare is joining the effort of private insurers to "curb the sharply escalating costs of MRIs and other scans"--now "approaching $100 billion a year" nationwide. Among the changes that a Medicare advisory panel will recommend to Congress are reducing payments for some scans and reducing the number of imaging centers that "meet certain quality criteria in order to bill Medicare for services." But vital legal reforms are not mentioned among the panel's recommendations. We need a system of medical justice that defends the reasonable decision not to order an expensive scan. There must be a standard of care that doctors and patients can rely on, rather than a (non-)standard that changes from one jury to the next.

"There were a remarkable 45.4 million CT procedures performed in 2002 nationwide ..., compared to 39.6 million in 2001. ... National Imaging Associates estimates from its own experience that about one-third of advanced imaging tests are either inappropriate for the medical problem at hand, or don't contribute to a doctor's diagnoses or a patient's outcome."

Related: IN DEPTH: CT Scans and the Fear of Being Sued.

Report: Lawsuits Limit Cancer Tests
Carrie Johnson, St. Petersburg Times, December 21, 2004

In Florida, a governor-appointed task force reports that lawsuits are "discouraging radiologists from offering mammograms." Radiologists have good reason to be afraid. As many as 17 percent of tumors are "missed during at least one exam." And in 2002, a study of 25 insurance companies conducted by the Physicians Insurers Association of America found that "radiologists accounted for 33 percent of all claims and the most common allegation against radiologists was 'mammogram misread.'" Six seats are available in breast-imaging fellowship programs across the state of Florida, but none are filled. In fact, "a recent survey of 211 radiology residents showed that 63 percent of students wouldn't accept a fellowship in breast imaging." "Why would they jeopardize their lives and their careers if it's not absolutely necessary?" said Dr. Ada Patricia Romilly, a member of the Florida task force. article »

Take Two Torts and Call Me in the Morning
Lawrence K. Altman, M.D., New York Times, December 14, 2004

Trial lawyers need doctors too, but how does the patient's profession impact the doctor-patient relationship? Some doctors act defensively, ordering "extra tests to be sure they do not miss something and become one of their patient's next victims. And a small number of doctors--no one knows exactly how many--have refused to treat lawyers." For their part, some lawyer patients "try to avoid identifying themselves as lawyers on doctors' intake forms. ... [They worry] they might be subjected to overtesting because of their profession, and thus risk having unnecessary procedures. But other lawyers are emphatic in letting the doctor know their occupation: They believe the extra tests they may get will lead to better care."

Increase in C-sections Spurs Ethical Debate
Michael Flynn, Asheville Citizen Times, November 15, 2004

The number of births by Caesarean section increased by seven percent between 2001 and 2002, in part because of liability concerns. "They now account for more than one in four births, the highest rate ever reported in the United States. ... Defensive medicine has resulted in C-sections being performed earlier in labor or with less definitive medical indications, [Dr. William Brannan of Ashville's Mission Hospitals] said. 'Once a woman mentions C-section as a possibility, physicians are reluctant to encourage her to continue laboring because any problem with the delivery or the child will be blamed on the physician not doing a C-section in a timely fashion,' he said."

Related: IN DEPTH: Law and the Realities of Medicine

Studies Raise Questions on Value of Intensive Care
Ceci Connolly, Washington Post, October 8, 2004

New studies conducted by Dartmouth Medical School have found that more intensive medical care "does not necessarily translate into longer life or better health and may in fact leave patients worse off. ... Elderly patients with chronic illnesses who stay in the intensive care unit longer, receive more diagnostic tests or are treated by numerous specialists do not fare better than those who receive less intensive care." Unfortunately, our unreliable legal system often does not protect the decision to provide less-intensive care.

The Dartmouth studies "lend support to a growing movement in health policy circles toward 'evidence based medicine' in which doctors adhere to scientifically proven treatments and providers are paid for results rather than procedures." To read more about how the legal system can be hostile to evidence based medicine, see "Winners & Losers" by Dr. Daniel Merenstein.

IN DEPTH: CT Scans and the Fear of Being Sued
Comments on "CT Scans May Get Overused"
Joe Pellicer, Olympian, August 18, 2004

Last year alone, over 60 million CT scans were performed in the United States. Are CT scans overused? It's a complex social and medical question that doctors must wrestle with in their daily practice. More than a social and medical question, however, for doctors it is also a legal question. With CT scans, as in other areas, a pervasive fear of being sued has become a sizable hurdle to finding the right answers--and the right balance--for our society and for our health.

more »

Doctors Spell Out Risks of Childbirth on Consent Forms
Carol M. Ostrom, Seattle Times, August 9, 2004

Seven Seattle obstetricians are drafting a consent form that details "in graphic terms the dangers [patient's] babies face coming into the world, including death, 'permanent severe brain damage,' and other lifelong disabilities." Such a detailed form departs from the usual approach, but the doctors say they need to "force patients--particularly highly educated, perfection-seeking professionals who have never accepted 'bad outcome' as an option--to face a stark reality: In pregnancy, there are no guarantees." While juries typically side with doctors and hospitals in medical malpractice cases, Jury Verdict Research indicates that in cases involving "a childbirth gone wrong, . . . juries sided with patients 60 percent of the time in 2002, up from 34 percent two years earlier." (Most medical malpractice cases do not go to trial, ending in settlement instead.) article »

Health Courts

Malpractice Reform Needed in State
Edward J. Volpintesta, M.D., The New-Times, November 18, 2008

Dr. Edward J. Volpintesta, a family practitioner from Connecticut, expresses his frustration with the medical liability system and calls for a system of health courts.  Medical malpractice cases often worsen the pain and confusion of victims and result in a loss of confidence in the health system.  Health courts, however, Dr. Volpintesta explains, “compensate families rapidly and reasonably, minimize finger-pointing, and promote humane and sympathetic communication.”  He stresses that health courts are not meant to lessen accountability, but rather they prevent turning “a lamentable situation into a legal battleground.” » article

Durbin, Doctor Vie for U.S. Senate
Associated Press, Lake County News-Sun, October 27, 2008

Dr. Steve Sauerberg is offering a new agenda to voters in Chicago, asking them to elect him over two-term incumbent Senator Dick Durbin.  Sauerberg is the Republican candidate who believes he offers an outsider's perspective on Washington that would help bring about needed change.   Sauerberg is a family practice physician who sees health care as a major challenge facing the country.  He believes government will need to control costs, in part by creating separate health courts to handle medical liability cases.  Health courts would help to provide quick and consistent remedies to medical malpractice cases while lowering overall systems costs.  » article

Advancing Health Care
R. Bruce Josten, Politico, October 20, 2008

R. Bruce Josten, executive vice president for Government Affairs at the U.S. Chamber of Commerce, believes the health care system is inefficient, too expensive, and places too much focus on treatment as opposed to prevention.  Although these faults are daunting, a systematic approach can remedy American health care.  In addition to wellness and prevention programs, and health information technology, Josten cites Common Good’s health courts as a way to provide higher quality care.  Josten and Common Good support implementing health courts as a way to combat the wasteful spending caused by defensive medicine and eradicate legal fear from the practice of medicine.  According to Josten, specialized health courts would “remove medical malpractice claims from the tort system.”  » article 

Safer Care Means Fewer Lawsuits
PPI Health Policy Wire, October 16, 2008

The Progressive Policy Institute believes that medical mistakes in hospitals represent the faults of the health care system.  “The problem,” PPI states, “is that providers see lawsuits as random acts of violence against them rather than as a symptom of a broken safety system.”  Because only 2 percent of injured patients actually file malpractice suits, doctors and hospitals find it hard to determine how to prevent injuries and provide better care.  PPI believes health courts, which “deliver fair and reliable justice,” will transform American heath care.  Similar to workers compensation, health courts would handle routine cases administratively with only non-routine cases going to full trial.  Health Courts would introduce a predictable legal system for both patients and providers.  Predictability will allow providers to assess their actions and detect errors, which will result in better patient care.  » article 

Colorado Senate Debate
Denver Post, October 8, 2008

At a recent debate between candidates for Colorado’s open U.S. Senate seat, Bob Schaffer made a case for health courts.  As part of his affirmative response to the question of “whether the nation’s health care system needs comprehensive reform,” Schaffer argued: “We ought to establish around the country specialized health courts so that we could expedite legitimate claims against health providers and others in a way that maintains consistency and predictability throughout the country.” » article

AMA President Says N.Y. Needs More Primary Care Physicians
E.B. Solomont, New York Sun, July 14, 2008

Physicians across the country are struggling to maintain their practices.  Dr. Nancy Nielsen, the president of the American Medical Association, describes how major changes are needed in health care from the way health insurance is structured to the way physicians are compensated.  A practicing physician in Buffalo, Nielsen points to the need for more primary care physicians in New York, and around the country.  She discusses how New York physicians are headed for a serious conflict as liability rates are set to increase unless Governor Patterson commits to making reform a priority.  "We've had a medical liability crisis in New York for a long, long time, and when I say crisis, it has led people to leave their practice before they otherwise would have," says Nielsen.  "There are many alternative approaches that have been suggested, such as medical courts, because people who are injured deserve to be compensated." » article

Make Health Courts Central to Medical Reform
William Reider, South Florida Sun-Sentinel, April 7, 2008

“[ Florida] will continue to drive away the best and brightest [doctors] from considering practicing,” quotes this editorial addressing the state’s critical medical malpractice situation.  Physicians are leaving Florida at an “alarming rate,” due much in part to skyrocketing malpractice insurance premiums.  Further complicating the situation is the practice of defensive medicine, which is the over utilization of tests out of a fear of lawsuits.  Health courts could be the solution, and the proposal has been supported by experts at the Harvard School of Public Health, the Robert Wood Johnson Foundation, and the Progressive Policy Institute.  Moreover, AARP has called for health court pilot projects.  Such a system could utilize special judges with health care expertise and neutral medical experts to achieve more reliable verdicts.  “The health courts concept has been around for many years,” writes the author.  “The time has come for our legislators to consider this reform.” » article 

Conference Looks at Ways to Reduce Medical Errors, Boost Openness
Allison Rupp, Billings Gazette, April 4, 2008

This recent article highlights a conference in Laramie, Wyoming cosponsored by Common Good and the University of Wyoming.  The keynote speaker, past president of the Joint Commission Dr. Dennis O’Leary, described how medical errors continue to be a serious challenge facing providers and administrators.  Speakers from across the country, in many fields of expertise, discussed ways to improve patient safety and reduce errors through both medical and legal programs.  While some advocates noted the need for transparency and disclosure, others noted that the current legal system discourages those very practices.  Moreover, the legal system links compensation with provider accountability, according to Ed Dauer of Common Good Colorado.  "A patient can't get compensation if the doctor doesn't lose," said Dauer, who is currently president of the Colorado branch of Common Good, a bipartisan legal and health care reform coalition. "It creates an adversarial posture."  Common Good General Counsel, Paul Barringer, suggested voluntary compensation pilot projects which would take medical malpractice claims out of the court system for faster, more equitable resolution with robust linkages to patient safety.  » article  » more coverage of the Wyoming event

New Zealand's Approach Points the Way on Medical Liability
Senator Bob Hagedorn, Rocky Mountain News, March 22, 2008

In this article, Senator Hagedorn, chairman of the Colorado Senate Health and Human Services Committee, outlines some of the failings of the current legal system and suggests an alternative that warrants attention – New Zealand’s health court system.  The current “lawsuit-based status quo” has a number of critical shortcomings: it does a poor job of preventing future medical errors; it is terribly inefficient – it “wastes huge amounts of money,” which could be used to meet the “medical needs of uninsured working families”; it undermines the physician-patient relationship; and it limits access to care, as doctors avoid high-risk services like obstetrics.  There is a better way to run the U.S. medical liability system, and one needs only to look at New Zealand to find a promising approach.  In New Zealand, patient compensation is accomplished via a system very similar to health courts.  Injured patients are compensated without being forced to show that their doctor was at fault, and physicians are still held accountable through a range of disciplinary mechanisms.  Importantly, “emphasis is made...on learning from mistakes and improving the system so errors won’t be repeated.”  Colorado “should aspire to move beyond the current medical liability dynamic,” writes Senator Hagedorn, “[and] toward a system that protects and compensates patients, targets the reduction of mistakes and accidents, restrains costs and doesn’t declare open season on physicians.”  » article

Doctors Rally for a Remedy
James Odato and Cathleen Crowley, Albany Times-Union, March 5, 2008

Around 1,500 doctors recently went to Albany to call for a fix to New York’s exorbitant medical liability insurance rates. The members of the Medical Society of the State of New York applauded the Governor and Senate leader for their commitment to find solutions to the crisis. "We will alleviate the pain; that is the pledge I make to you," announced Governor Spitzer. Among proposals recommended by the Medical Society to remedy the current liability climate are the creation of a "no-fault compensation fund for babies who suffer neurological injuries at birth" and the formation of "medical courts."  » article

New York Must Fix Malpractice Insurance Problem
Editorial, Newsday, March 4, 2008

New York’s medical liability climate needs immediate attention.  Physicians are currently marching on Albany in an attempt to seek relief from sky-rocketing malpractice insurance premiums, which can reach as high as $177,880 per year for a Long Island obstetrician.  According to this editorialist, however, the common proposal to fix the crisis (caps on non-economic damages in lawsuits) is probably not the best solution.  “With a 14 percent jump in premiums this year and the specter of more to come, officials must move past the stalemate over caps.  What’s the alternative?” questions the author.  Among the “ideas worth exploring” are proposals to establish “specialized medical malpractice courts” (or health courts) and a no-fault system, especially for cases involving injured infants.  Governor Spitzer’s malpractice task force should look to alternative ideas when it issues its report next month.  “Clearly, something’s got to give,” the writer states.  “Otherwise physicians will leave the state and patients will have a hard time finding doctors - and not just for one day.” » article

Malpractice Crisis Looms for Area MDs
George Wallace, Suffolk Life, February 20, 2008

Despite recent hikes in liability costs this year, doctors in Suffolk County fear that they may suffer another financial blow this year.  Physicians could be struck with a $50,000 surcharge, and another 10% to 15% increase in medical liability premiums this year and in succeeding years.  According to Dr. Erika Jurasits, of Mather Hospital, this is causing a disaster:  “Thirty primary care physicians have already left this community, either leaving medicine all together or retiring early.”  Dr. David Kirshy, president of the Suffolk County Medical Society noted, “OB-GYNs in this area have stated that they can’t afford any more increases. They’ll just have to stop delivering babies altogether.  That’s not a threat; they’re just stating facts.”  Among the reform proposals being considered to fix this crisis are plans for “medical courts” and an “impaired newborn compensation program.”  Medical courts would utilize specialized judges and experts to review cases and increase overall efficiency.  A compensation program for babies with birth injuries would pay claims for perinatal neurological impairment issues.  According to Senator Flanagan, “[a] long-term solution needs to be vetted and implemented sometime this year.  We are definitely in a crisis right now, and I don’t think we have a choice.  This resembles a pressure cooker – it’s been building up over time and when it blows, it’s not going to be pretty.” » article 

The Elusive Prescription for Health Care we can Afford
Dr. Sidney Goldfarb, Wall Street Journal, February 4, 2008

There are many factors driving the high cost of national health care, and this letter to the editor discusses how defensive medicine and expensive malpractice lawsuits are contributing to the national problem.  Some estimates say defensive medicine is responsible for 20-25% of the nation’s health care spending.  In addition, high-priced expert witnesses in malpractice trials add enormous cost to the litigation process.  This author supports the creation of health courts to keep costs down, while improving efficiency and patient safety.  » article

Why Health Courts Could Pick Up Steam
Leslie Kane, Medical Economics, January 4, 2008

An editorial in Medical Economics discusses how health courts offer a promising solution to the medical liability problem.  Though health courts provide benefits for consumers and physicians, legislation has been unable to move beyond the initial stages.  Yet health courts offer real solutions to improving patient safety, improving error reporting and catalyzing quality improvement measures - changes which would benefit every health care consumer.  Common Good's Paul Barringer notes that public interest is growing through the organization's advocacy efforts.  » article

Health Care Costs and Malpractice Reform
David Kendall, American Interest, January 1, 2008

David Kendall's memorandum to the 2008 presidential candidates describes the need for dramatic medical liability reform.  Kendall discusses how the use of specialized health courts dedicated to resolving medical injury disputes can lower liability costs and create consistency.  Such a system would motivate medical professionals to back more sweeping health care reforms for the insurance system. » article

NCPA: Move Medical Malpractice out of the Courts
National Center for Policy Analysis, December 18, 2007

The National Center for Policy Analysis has released a report advising that the current medical malpractice system should be replaced.  Their proposal (not dissimilar to health courts) would move the system for compensating injured patients away from the current tort system, thus eliminating many inefficiencies and problems.  Consider the fact that less than 2 percent of patients who are negligently injured file a lawsuit, and even fewer receive compensation.  Moreover, “malpractice victims receive less than half of every dollar (46 cents) recovered through settlements or jury verdicts.”  The rest of this money goes to paying system costs such as attorneys’ fees.  “[The] medical malpractice is a system of lawyers, by lawyers and for lawyers,” said policy analyst Pam Villarreal.  “The needs of patients and the freedom of doctors to practice medicine often get lost in the mountain of litigation.” » article 

Common Good Leading Effort to Develop Models for Special Health Courts
Paul Barringer, AAP News, November 1, 2007

Paul Barringer of Common Good recently wrote an article for the American Academy of Pediatrics describing the potential benefits of a health court system.  Health care improvements would include increased patient safety and the compensation of many medical injuries that fall through the cracks of the current system.  » article (subscription required)

Letter to the Editor: Medical Justice
Edward Volpintesta, Stamford Advocate, October 31, 2007

The Fairfield County Medical Association recently held its annual meeting, where Common Good's General Counsel, Paul Barringer, was the keynote speaker.  This author describes how Common Good's health court proposal for reforming medical liability would improve nearly every aspect of the current malpractice system.  "Legal hostilities would be minimized, individuals harmed by error would be compensated much more rapidly than they are now and significantly less money would be spent on legal costs. Patient safety would improve because doctors would feel free to discuss medical errors openly," he writes.  Additionally, he points out that the health court proposal addresses more than just costs and payments, but considers the real life ramifications of patient safety and medical error prevention.  » article

Top Doctor Drives State Agenda
Bruce Davis, Erie Times, October 27, 2007

The new President of the Pennsylvania Medical Society, Dr. Peter Lund, discusses challenges facing physicians in the state.  He notes that Pennsylvania is having real trouble keeping newly minted doctors in state, and certain specialists are becoming scarce.  Though there are many health care issues in the state, medical malpractice is one which needs fresh reforms.  Dr. Lund says, “The Medical Society is working on alternatives, which includes health courts, early mediation or arbitration, and we're also looking very seriously at an apology rule or benevolent gesture rule ... when physicians or health-care professionals acknowledge they have had a bad outcome and tell the patient that we're going to try and find out why that occurred.” » article 

Health Court Benefits Discussed by Experts
Sharon Fain, Wyoming Tribune-Eagle, October 16, 2007

Over 100 health care providers, academics, attorneys, patient safety experts and policymakers met in Cheyenne, WY last week to discuss alternatives to the medical liability system.   Common Good, in coordination with the Wyoming Healthcare Commission, hosted the event which focused on emphasizing patient safety in medical malpractice.  Several presenters discussed new approaches and recent research.  Panelists from the Wyoming area discussed the proposal in terms of local needs.  "Our current medical litigation system is broken. It doesn't work well for patients and doesn't work well for doctors,” said Wyoming Senator Mike Enzi in a statement.  “What we need is a system that delivers quick and fair compensation to injured patients while providing consistent and reliable results so doctors can eliminate the practice of defensive medicine and learn from medical errors." » article, » Read more about the Wyoming forum

Enzi Proposes Medical Courts, Insurance Pools
Mead Gruver, Jackson Hole Star Tribune, September 16, 2007

Health care, along with the war in Iraq, is among Americans’ top priorities, says Senator Enzi of Wyoming.  Trying out medical courts is one of the Senator’s proposals for lowering health care costs and increasing health insurance coverage.  Medical courts would reduce the cost of medical malpractice insurance.  Another key benefit is that such courts would not cap damage awards, but would instead see to it that awards go to helping deserving injured patients rather than lining their attorneys’ pockets. » article

Romney Wants Tax Breaks to Expand U.S. Health Cover
Washington Post, August 24, 2007

Presidential hopeful Mitt Romney announced his plans for the future of health care.  In addition to expanding insurance coverage, Romney vowed to help curb the cost of medical liability insurance through several means.  Notably, Romney proposed the establishment of health courts to handle medical liability cases, which would lower costs and speed the claims process for patients. » article

Give Health Courts a Fair Shake
Mark Crane, The American, August 20, 2007

Health courts “might be the cure to alleviate the pain suffered by all sides in our present highly dysfunctional system,” advises Mike Crane of the American. In malpractice cases, jurors hear testimony from “dueling expert witnesses” – hired professionals who favor one party’s version of events and can have tremendous influence over a jury.  The author writes that “too much compensation is awarded to some injured patients and little or none to others.” Patient safety is at risk too: pervasive legal fear quiets doctors from reporting and discussing errors. Fixing the medical legal system could reduce defensive medicine, thereby lowering costs while improving patient safety by discouraging risky and unnecessary procedures. Health courts could provide the opportunity for faster and more just compensation for deserving patients. » article

Coburn Calls for Privatizing Health Care
Kirby Lee Davis, The Journal Record, August 8, 2007

Senator Tom Coburn recently introduced a new bill that proposes the creation of specialized health courts. According to Coburn, this type of system would soon stimulate competition that would reduce spending. Health courts could greatly reduce the time cases take while also increasing the amount of the compensation that goes to patients instead of lawyers. » article

Don't Blame Victims for Problems with Malpractice
Newsday, July 24, 2007

Medical malpractice costs are a serious issue across the country and for New Yorkers in particular.  Yet little has been done to assess or remedy the situation besides offer tired solutions and lay blame.  One editorial describes how various interested parties have legitimate concerns, but no one has advanced real proposals that can seriously address all sides of the problem.  As insurance rates continue to increase, doctors will be forced to cut services or potentially leave medicine altogether, but patients should not have to suffer.  This article voices the need for new proposals and fresh ideas, such as health courts, that offer a comprehensive solution to a complex and immediate problem. » article

Health Courts Touted to Fix 'Broken' System
Mark A. Hoffman, Business Insurance, July 9, 2007

With the introduction of the recent Fair and Reliable Medical Justice Act, health courts are attracting more interest and have experts talking.  Both the American Medical Association and the Progressive Policy Institute have come out strongly in favor of health courts.   They see health courts as a way to compensate more patients in less time, while still working to create consistency and control malpractice premiums.   “Ultimately I think that interest is driven by the fact that all the parties recognize the need for fundamental reform, and that there is a need to explore alternatives,” said Common Good’s General Counsel, Paul Barringer. » article (registered users)

Malpractice Prescription: A Healthy Dose of Health Courts
Amy Gillentine, Colorado Springs Business Journal, July 6, 2007

A recent article in the Colorado Springs Business Journal reviews the health court concept amongst supporters and opponents.  Health courts would be dedicated to handling malpractice claims by using trained adjudicators and neutral expert witnesses.  “The goal is not merely to bring stability to the medical liability insurance crisis, but to provide a solid legal foundation to promote better and more affordable health care,” said Philip K. Howard, chairman of Common Good, in Legal Affairs, an online magazine.  The article further describes the American Medical Associations endorsements and proposals for creating health courts.  “On balance, it’s a good idea,” said one Denver attorney. “In our current system, more people are injured than are compensated. The judgments are inconsistent, based on a patchwork of factors — emotional appeal of the case being one of them. There are a lot of costs related to the process — attorney’s fees, other factors involved in the ‘defensive’ practice of medicine.” » article

AMA Adopts Principles for Health Courts
Earthtimes, June 27, 2007

The American Medical Association is working to adopt and promote guidelines for state-sponsored health courts.  "While we support medical liability reforms patterned after the successful California law...other proposals should be explored by states as well.  Health courts are a promising reform proposal that merits more investigation," said AMA Board Member William Hazel.  The California law Hazel referred to involves extensive tort reform initiatives that have since been adopted by many states.  However, such reforms do not address many of the systematic problems with medical liability that affect both patients and providers; such as improving patient safety and shortening the claims process.  Hazel described how the AMA hopes its efforts will aid local policymakers in understanding and designing health court proposals.  "The new AMA health court principles should assist state and local governments, insurers, hospitals, and other entities interested in exploring this option for medical liability reform," Hazel said. » article

If Med-Mal Litigation is the Disase, Could Health Courts in MD be the Cure?
Caryn Tamber, Maryland Daily Record, June 14, 2007

Representatives from both sides of the medical malpractice system recently discussed the concept of health courts in Maryland with a local reporter.  The Maryland State Bar Association sponsored a panel discussion on the topic of health courts at their annual meeting titled, "A Cure for the Courts: Are Health Courts the Rx for Maryland?"  Common Good's General Counsel Paul Barringer spoke alongside Maryland Delegate Chris Shank and retired Prince George's County Circuit Judge Steven Platt at the event.  All three speakers discussed their views on health courts in the article, noting that there is still much to be done to gain traction in the local legislature, but the idea has strong supporters.  Barringer described the health court system as bringing together malpractice liability and patient safety in a more effective way than the current system.  Modelled after Maryland's business and technology courts, the health court proposal has been introduced to the Maryland legislature and will continue to be a topic of discussion among stakeholders.

Competition: A Prescription for Health Care Transformation
Tom Coburn, Joseph Antos and Grace-Marie Turner, Heritage Lectures, June 13, 2007

Senator Tom Coburn of Oklahoma endorsed health courts in a recent discussion with the Heritage Foundation.  Coburn describes how health courts would offer a way for more claims to be heard in a more equitable, unbiased environment.  Coburn discusses how the use of neutral expert witnesses would help clarify whether injuries could have been reasonably avoided. » article 

A President's Review of Critical Issues Facing Medicine
Dr. William Plested III, American Medical News, June 11, 2007

The president of the American Medical Association, Dr. William Plested, wrote of the many issues facing physicians in his yearly letter.  Notably, Plested discussed some legislative options, including medical courts.  He writes, “We have thoroughly studied the concept of medical courts and are ready to support any state that is prepared to do a demonstration of this attractive alternative to the current tort system.”  In May 2007, bipartisan federal legislation was introduced that would fund state sponsored pilot projects, and numerous states are considering legislation for health court demonstration projects. » article

Congress to Weigh Health Courts
Olga Pierce, United Press International, May 24, 2007

Citing the introduction of the Fair and Reliable Medical Justice Act by Sens. Michael Enzi (R-WY) and Max Baucus (D-MT) and Reps. Jim Cooper (D-TN) and Mac Thorberry (R-TX), United Press International reports that “[t]he medical tort reform debate has not been fertile ground for compromise, but the sponsors of a bipartisan bill introduced today say they may have found a way out of the impasse.”  The bill would award grants to 10 states to develop special health court pilot projects.  According to the sponsors, the bills’ limited scope and the fact that it encourages state experimentation should make it easier to build a consensus behind this new alternative to traditional tort reforms.  “Health courts are also an idea that creates a lot of consensus,” said Sen. Enzi, ranking member of the Senate Health, Education, Labor and Pensions Committee.  “The idea was chosen for state grants ‘because it hasn't been politicized by Congress,’ Enzi said.”  » article

More media coverage

End the Blame and Shame Game
Paul Barringer and Edward Dauer, Modern Healthcare, May 21, 2007

In a recent Modern Healthcare opinion piece, Common Good General Counsel Paul Barringer and Common Good Colorado President Ed Dauer discuss how the current medical liability system undermines patient safety.  Notably “the ‘blame and shame’ approach of litigation inhibits learning and the collection of information about errors that would be most useful to avoiding harm in the future.”  “Physicians’ justifiable fear of the legal system inhibits open communication about errors, reinforcing a culture of nondisclosure and noncollaboration in efforts at improvement.  In all of this, what should be the principal objectives of the law are lost: fair and effective compensation, predictable standards for medical practitioners, accountability for hurtful incompetence, and the wise use of today’s mishap in order to prevent tomorrow’s.”  Barringer and Dauer underscore the need for fundamental change, not simply tort reform of the usual kind.  The administrative health court model developed by Common Good and researchers at the Harvard School of Public Health is one novel alternative that would be eligible for federal grants under a new bipartisan bill before the U.S. Senate. 

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That Malpractice 'Epidemic'?
Sandra G. Boodman, Washington Post, May 8, 2007

According to Philip G. Peters, Jr., turning cases over to specialized health courts would benefit injured patients. In a recent law review article, Peters found that malpractice jury verdicts generally tend to be biased in favor of physician defendants. “Studies have consistently found that malpractice plaintiffs fared better in front of judges than in front of juries.”  article »

Lawmaker Wants Special Courts for Malpractice Cases
Wheeler News Service, April 23, 2007

Wisconsin Assembly Republicans have unveiled their health care reform agenda, which includes “wellness program incentives, a health care court system, and tax deductions for insurance premiums and health savings accounts.”  Rep. Robin Vos (RRacine, hopes to introduce a bill in a couple weeks that would put health care lawsuits, including medical malpractice cases, into its own court system. Vos likened his proposal to bankruptcy courts.  article », related article »

Assembly GOP Unveils Health Care Agenda
Staff, WisPolitics, April 18, 2007

Wisconsin Assembly Republicans have unveiled their health care reform agenda, which includes “wellness program incentives, a health care court system, and tax deductions for insurance premiums and health savings accounts.”  Rep. Robin Vos (RRacine, hopes to introduce a bill in a couple weeks that would put health care lawsuits, including medical malpractice cases, into its own court system. Vos likened his proposal to bankruptcy courts. article »

The Doctor Is In -- For Now
Cathleen F. Crowley, Times Union, February 3, 2007

The Times Union reports that creating specialized health courts is one of the medical liability reforms being lobbied for this year by the Medical Society of the State of New York  Gerry Conway, vice pr