How the GOP’s ‘Access to Care’ bill cuts down states’ rights

The GOP has long had the brand of being the party of states’ rights and minimalist federal government — it’s no wonder that Paul RyanPaul RyanTrump's approval takes hit after failed GOP healthcare planHow the GOP’s ‘Access to Care’ bill cuts down states’ rightsTax reform an important part of pro-consumer energy policyMORE has been thinking about sending Medicaid back to the states since he was in college. Indeed, one of the reasons cited by House Republican leadership in the battle over the American Health Care Act for why Medicaid funding should be distributed to states in block grants with fewer federal requirements is that it empowers states to design Medicaid programs that meet each particular state’s needs.

But when it comes to the topic of placing sharp limits on lawsuits by individuals who’ve been injured by negligent or abusive nursing homes or defective drugs, the bill being pushed by Republican leadership (H.R. 1215, the Protecting Access to Care Act) embraces the view that’s what’s good for Medicaid isn’t good for civil justice.

Among other things, H.R. 1215 proposes placing a federal cap of $250,000 on the amount of noneconomic damages state-court juries can award and limits the scope of state-law suits in cases against healthcare and medical providers. But state courts, state law and limits on damages for state-law tort suits have always been very much in province of the state legislatures and courts. If enacted, H.R. 1215 would be an unprecedented intrusion into the operation of state law — the exact opposite of empowering states to design schemes that meet their needs.

Though $250,000 may seem like a large amount of money, is it enough to compensate you for never being able to walk or work or hug your child again? In Latracia Satterwhite’s case, the jury didn’t think so.

Ms. Satterwhite was a 33-year-old single working mom who underwent an hour-long relatively minor heart surgery in Mitch McConnellMitch McConnellScarborough: Bannon trying to ‘help his falling standing’ in WHHatch: I may retire if Romney runs to replace meHow the GOP’s ‘Access to Care’ bill cuts down states’ rightsMORE’s home state of Kentucky. The state’s Constitution prohibits the legislature from attempting to place caps on the damages that juries can award to injured persons. The heart surgery was technically a success, but in the process, the doctors misplaced a blood-carrying hose and failed to recognize the red flags indicating that something had gone terribly wrong. As a result of the doctors’ errors, Ms. Satterwhite suffered brain damage and lost the use of her arms and legs. Ms. Satterwhite’s life, and the life of her child, became forever altered.

After a full trial and hearing all the evidence, the jury awarded her several million dollars in non-economic damages, pale compensation for her preventable, permanent and devastating injuries. Under H.R. 1215, though, without hearing any of the evidence — it apparently doesn’t matter — and without respect to the principles of the Kentucky Constitution, the House Republican leadership would have limited Ms. Satterwhite to only $250,000 for her pain and her experience of not being able to use her arms and legs. Cases like Ms. Satterwhite’s are the reasons why states like Kentucky have declined to adopt those sorts of arbitrary caps.

But even if you agree with the policy behind H.R. 1215, that medical malpractice and other health-related claims are in need of reform — and we would disagree with you — there a couple of very serious problems with the way it takes a sledgehammer to state law.

First, the federal damages cap proposed by House Republican leaders would override and violate at least 18 state constitutions: in addition to Kentucky, states as diverse as Alabama, Arizona, New Hampshire, New York, Oklahoma, Washington, Wyoming and even Paul Ryan’s home state of Wisconsin. That’s right: Republican leadership wants to strip away your state constitutional rights. What a turnaround from the small-federal-government-states-rights party.

On the AHCA, a large number of Republican House members refused to follow the leadership where they believed it was not respecting core Republican principles. It will be interesting to see if many House Republican members will show a similar respect for the principle of limited federal intrusion into state laws and decisions.

Second, a number of states, including California, Colorado, Texas and Mike PenceMike (Michael) Richard PenceHow the GOP’s ‘Access to Care’ bill cuts down states’ rightsChristie to take on role in Trump's fight against opioids: report3 reasons Devin Nunes must step away from the Trump probeMORE’s home state of Indiana, have already enacted changes attempting to get at the same policy goals of H.R. 1215. But H.R. 1215 would partially override those states’ carefully crafted suite of laws, laws designed to balance each other out and address those state’s particular needs. H.R. 1215 gives no respect at all to those states’ lawmakers.

Whether we’re talking about marriage or Medicaid, the GOP has long been an enthusiastic waver of the states’ rights flag, loudly championing the ability of a sovereign state to decide what’s best for its own local community. These principles should apply with equal force to the civil justice system; the area of what state-court juries can award has long been particularly entwined with state law. H.R. 1215, though, would upend that bedrock Republican philosophy. Will House Republicans follow their leadership or their principles on this one?

http://thehill.com/blogs/pundits-blog/healthcare/326185-how-the-gops-access-to-care-bill-cuts-down-states-rights

Tell Congress To Protect You:

Congress is changing the law to let corporations hurt your families and friends in nursing homes without being held accountable.

This only helps the health care and insurance industries, and put you at risk.

If you like this, then do nothing.

If you feel this is wrong, then tell Washington to protect you and your family by voting NO on this bill.

Please do this today!

If you don’t protect yourself, no one will do it for you.

Here's a link w/info:  www.takejusticeback.com/ProtectMyRightToFight

Thanks!

HOW TO PROTECT YOURSELF FROM GOVERNMENT BAN ON LAWSUITS AND DAMAGES

Responsibility and accountability – even for the powerful – are rooted into the core of our legal system. This country’s founders knew that a democracy needs a court system that empowers people to protect themselves by holding the powerful to account. That’s why the Constitution guarantees each person the right to a trial by jury. The founders feared unaccountable power in the form of the King of England against his “subjects.” 21^st Century America may not have a king, but it does have billion dollar corporations touching every part of every person’s life. These corporations now seek the kind of unaccountable power our founders sought to protect against, and they’re seeking that power by destroying your constitutional right to a trial by jury.

Politicians who are in the pockets of large corporations and insurance companies have devised a plan specifically aimed at destroying our right to hold those in power accountable for their misdeeds. Their plain is to enact laws that will all but destroy your right to use the judicial system to protect yourself. They have introduced bills which, if passed, will enact arbitrary changes to courts all across the country, including:

• Limiting compensation for injuries caused by medical professionals, including doctors, hospitals, nursing homes, and medical device manufacturers,

to $250,000.00, regardless of how much that injury devastated your life

or the extent of malfeasance by the medical professional or company.

• Eliminating class-action law suits, which would essentially destroy the ability to bring the kinds of cases that keep us safe

• Eliminate Individual States Law regarding lawsuits and forcing all cases to Federal Court

• Allowing insurance companies to make “payments” rather than paying full compensation.

We must tell our government to put people first and stop trampling on our rights. Adams Law Firm has been protecting citizens of New Jersey and New York by demanding that everyone is treated fairly, regardless of gender, race, or economic status. Please join us in demanding that Congress do the same. We must ban together and contact our representatives to demand they say NO to these outrageous attacks on our rights. Go to each link below and tell them NO!

• Lawsuit Abuse Week: www.takejusticeback.com/ProtectMyRightToFight

• Class Actions: http://www.takejusticeback.com/StopHR985

• Medical Malpractice: http://www.takejusticeback.com/ProtectPatients

Medical Malpractice (How Much it Costs)

As little as 1% or as much as 2% of all medical costs; depending upon which study you follow.  In lay terms, if malpractice was eliminated the "savings" would be $2 off of every $100.00.

The cost to society as a whole would be substantially greater.
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On Tort Reform, It's Time to Declare Victory and Withdraw

Steve Cohen, Contributor

“The greatest trick the Devil ever pulled was convincing the world he didn’t exist.”

Verbal (Kevin Spacey) in The Usual Suspects

The second greatest trick may be the insurance industry’s success in getting more than half the states to implement “tort reform.” That achievement was based on the promise that restricting victims’ ability to bring medical malpractice suits would improve healthcare and reduce its cost.  Those myths have now been completely dispelled.

The last bubble to burst was that because doctors are fearful of getting sued, they practice “defensive medicine,” prescribing unnecessary and costly tests and procedures.  That myth was dispatched by the recent publication of a major study in the New England Journal of Medicine. A team of five doctors and public health experts found that tort reform measures passed in three states – specifically designed to insulate emergency room doctors from lawsuits — did nothing to reduce the number of expensive tests and procedures those ER doctors prescribed.

This latest study follows numerous others that deflated other tort reform myths: that making it harder for victims to file medical malpractice lawsuits would reduce the number of “frivolous” suits that “clog the courts;” that imposing caps on the damages victims could receive would reign in “out of control” juries that were awarding lottery-size sums to plaintiffs; and that malpractice insurance premiums would fall, thereby reversing a doctor shortage caused by specialists “fleeing the profession.”

None of these promised benefits became reality. That’s because the alleged problems were themselves non-existent.  Perhaps the most telling fact is that the Department of Justice found that the median med mal award in jury-decided cases was $400,000.  In bench trials, where the judge also serves as the jury, the median award was $631,000.

The tort reform boom started in 1975 when California imposed a $250,000 cap on the amount victims of horrendous negligence could collect.  More than half the states followed with their own measures capping damages, reducing the amount of time victims had to discover and bring a lawsuit, and even limiting the amount of money lawyers could be paid for representing clients.

The latest blockbuster revelation looked at the impact of tort reform restrictions implemented in three states over 10 years ago.  Texas, Georgia, and South Carolina passed legislation that made it virtually impossible to sue doctors or hospitals for emergency room treatment. The study examined 3.8 million emergency department visits at 1166 hospitals between 1996 and 2012.

Why ER visits? Because the researchers knew that “emergency physicians practice in an information-poor, high-risk, technology-rich environment.” It was a setting, they noted, that “might lend to defensive practice and magnify the costs.”

What they found was that doctors in the tort-reform states – who were virtually immune to malpractice suits – prescribed just as many MRIs and CAT scans as doctors in the control states. Removing the risk of getting sued didn’t change doctor behavior.

In fairness, tort reform legislation has helped doctors a little.  While insurance premiums haven’t gone down, their price increases in tort reform states have gone up a little slower than in non-reform states – the lag is between 6% and 13%.  That hasn’t constrained the insurance industry from showing record profits.   Average returns for malpractice carriers hover around 15.6%, far better than the 12.5% for the property/casualty segment. And the malpractice insurers’ loss ratio – the percentage of claims to premiums — is a remarkably low 61.1%.

At the same time that the tort reformers were succeeding in limiting victims’ access to the courthouse, medical researchers were documenting an obvious but disturbing truth: hospitals are dangerous places.  In 1999 the Institute of Medicine at the U.S. National Academy of Sciences published its seminal study, To Err is Human,  which concluded that between 44,000 and 98,000 patients are killed (and many more injured) in hospitals each year due to medical errors. That number – which is more than automobile and workplace accidents combined – doesn’t include deaths in doctors’ offices or clinics – such as the one where Joan Rivers recently died.  By 2011, a study in HealthAffairs estimated the number of avoidable deaths was probably closer to one million.

Several studies have agreed that only about one in ten cases of serious negligence – and only 1% of all adverse medical events — ever result in any sort of legal action being initiated.

Sadly, the tort reformer’s success has had one unintended consequence that hurts everyone: they have slowed down progress in patient safety initiatives. It is well documented that major reforms in anesthesiology in the 1980’s were the direct result of anesthesiologists’ frustration with many large malpractice verdicts against the specialty – and the attendant negative publicity. In response, anesthesiologists revamped their procedures, established mandatory monitoring, improved training, limited the number of hours anesthesiologists could work without rest, redesigned machines and outfitted others with safety devices.  Within 10 years, the mortality rate from anesthesia dropped from 1 in 6000 administrations to 1 in 200,000.  And anesthesiologists’ malpractice insurance rates fell to among the lowest of any specialty.  Since the success of the tort reformers, other specialties have felt less pressure to undertake similar self-reflective reforms.

It is important to dispel one more myth: medical malpractice cases are about money. It is certainly not about money for the lawyers who represent these victims on a contingency basis. In New York, medical malpractice attorneys do not receive the one-third of the settlement or verdict that every other type of attorney is entitled to.  Instead, because of lobbying by the insurance and hospital industries, lawyers receive a sliding scale that starts at 30% and quickly falls to 10% of any verdict over $1.25 million. Making it not worth the lawyers time or investment – for just to file a case, the plaintiff’s lawyer must pay a doctor to review the file and issue a statement that the case has merit — is just one more tool the tort reformers created to keep victims from seeking justice.

True, monetary damages are the only way our system has of compensating the injured. But in the 25 years I have been writing about medical malpractice, I have never met a parent who wouldn’t give up every dime to see their child whole.

It is time for legislators to recognize that they were hoodwinked, dismantle the so-called reforms, and begin to look for real solutions to make patients safer.

https://www.forbes.com/sites/stevecohen/2015/03/02/on-tort-reform-its-time-to-declare-victory-and-withdraw/#106e03b563ea

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‘Catastrophic’ Malpractice Payouts Add Little To Health Care’s Rising Costs

Still, study suggests, efforts needed to reduce errors that lead to claims

Release Date: May 1, 2013

Efforts to lower health care costs in the United States have focused at times on demands to reform the medical malpractice system, with some researchers asserting that large, headline-grabbing and “frivolous” payouts are among the heaviest drains on health care resources. But a new review of malpractice claims by Johns Hopkins researchers suggests such assertions are wrong.

In their review of malpractice payouts over $1 million, the researchers say those payments added up to roughly $1.4 billion a year, making up far less than 1 percent of national medical expenditures in the United States.

“The notion that frivolous claims are routinely resulting in $100 million payouts is not true,” says study leader Marty Makary, M.D., M.P.H., an associate professor of surgery and health policy at the Johns Hopkins University School of Medicine. “The real problem is that far too many tests and procedures are being performed in the name of defensive medicine, as physicians fear they could be sued if they don’t order them. That costs upwards of $60 billion a year. It is not the payouts that are bankrupting the system — it’s the fear of them.”

Called catastrophic claims, payouts over $1 million are more likely to occur when a patient who is killed or injured is under the age of 1; develops quadriplegia, brain damage or the need for lifelong care as a result of the malpractice; or when the claim results from a problem related to anesthesia, the researchers found in a study published online in the Journal for Healthcare Quality.

Makary and his colleagues reviewed nationwide medical malpractice claims using the National Practitioner Data Bank, an electronic repository of all malpractice settlements or judgments since 1986. They looked at data from 2004 to 2010, choosing a 2004 start date because that is when data regarding the age and gender of patients and severity of injury became available for the first time. The information includes only payments made on behalf of individual providers, not hospitals or other corporations, meaning the number of payouts may be underestimated by 20 percent, Makary says.

Over that period, 77,621 claims were paid, and catastrophic claims made up 7.9 percent (6,130 payouts). The seven-year nationwide total of catastrophic payouts was $9.8 billion, representing 36.2 percent of the $27 billion worth of total claims paid over that time period.

The most common allegations associated with a catastrophic payout were diagnosis-related (34.2 percent), obstetrics-related (21.8 percent) and surgery-related (17.8 percent) events. Errors in diagnosis showed twice the odds of a catastrophic payout compared with equipment- or product-related errors and were associated with a roughly $83,000 larger payment.

The age of the physician was unrelated to the likelihood of a claim, suggesting inexperience is not necessarily a factor. But 37 percent of catastrophic payouts involved a physician with a previous claim in the database. The largest payout in the study was $31 million.

Makary says the data suggest that the focus of legal reform efforts should be on doctor protections aimed at reducing defensive medicine rather than the creation of malpractice caps.

He says his findings argue for more research to determine what interventions might prevent the type of errors that result in catastrophic payouts, with the overall goal of improving patient safety and reducing costs at the same time.

But real cost reductions, he says, will come from reducing the overuse of diagnostic tests and procedures.

Other Johns Hopkins researchers who contributed to this study include Paul J. Bixenstine, B.A.; Andrew D. Shore, Ph.D.; and Julie A. Freischlag, M.D.

http://www.hopkinsmedicine.org/news/media/releases/catastrophic_malpractice_payouts_add_little_to_health_cares_rising_costs