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Cost Rx: Defensive medicine a 'hoax,' ATLA

Posted on Jul 04, 2006

Cost Rx: Defensive medicine a 'hoax,' ATLA WASHINGTON, June 30 (UPI) -- In CostRx Part Two, Ken Suggs, president of the Association of Trial Lawyers of America, discusses the lawyers' side of the debate over medical malpractice reform and names insurance companies as the real culprits in driving up costs. Q. Isn't some of the issue of whether there's a medical malpractice crisis a perception problem, so that if reasonable caps are placed on "pain and suffering" damages in medical tort lawsuits, doctors will have less apprehension about "losing everything" in a lawsuit and be less likely to practice defensive medicine, where possibly unnecessary tests and procedures are ordered? A. Why cause an injury to somebody who's suffered a real injury to solve a problem of some doctor's nervousness? ... which is an illusion to start with. And you talk about defensive medicine; one of the things that astonishes me is the extent to which people -- and, unfortunately, the press -- are willing to buy into these wild statement that are made. Have you ever gone to your doctor and had your doctor say, "You know, there's a test that I probably ought to give you. I don't think it's necessary, but I'm afraid you'll sue me if I don't?" And do you know anybody whose doctor has ever said anything like that to them? Or do you know anybody whose doctor has ever given them an unnecessary test? Q. But might the fear of lawsuits cause the doctor to be over-zealous in ordering tests for a particular patient? A. You've got to use your common sense. Who pays for the test? The insurance company pays for the test. The insurance company's got somebody on their staff whose job it is to deny coverage for anything they think might be unnecessary. You can't hardly go to the emergency room without getting pre-cleared by your insurance company. You've got to call them up and say, "I'm going to be in a wreck tomorrow. Can I go to the emergency room afterwards?" Q. So you think the whole defensive medicine claim is just a paper tiger? A. I think it's a hoax. Q. Are you worried that, as more of these medical tort reform laws pass at the state level, will it become a tougher fight for your group at the federal level? A. This is a classic example of something that should be taken care of on the local level. It's surprising that Republicans would want a national law like this, because Republicans keep telling us they want smaller government. So if the state of Rhode Island, for example, decides it has a problem of availability and affordability of medical care that could be solved by denying people who are injured by negligent medical care the right to compensation, then they can deal with that. And if they're right, doctors will come back, healthcare will come back. But if Rhode Island has a problem and South Carolina doesn't, then why should we impose a solution on South Carolina to solve Rhode Island's problem? Q. How would you respond to the suggestions by some of the more radical critics who want to take medical malpractice out of the courtroom altogether and bring such cases before an adjudication board much the way auto insurance claims are handled? A. I take serious issue with setting up special panels to administer this because, unfortunately, special panels -- the way things work around (Washington, D.C.) -- always end up being the special interests who control them and ordinary people can't go in there and get justice. Q. But if there were lawyers serving on these panels and groups representing patients, wouldn't that make it more fair? A. If they had a truly fair group to look at (medical tort claims), it would end up being exactly the same cost as it is now, because the cost now is fair. Either you're got to choose an unfair group of people or tie the hands of a group of fair people. If you don't do that, you're going to end up with exactly the same kinds of (compensation) awards from a panel that you would get now. Because the awards (now) by and large, are absolutely fair. Q. A recent study published in the New England Journal of Medicine showed that about 15 percent of $449 million in medical tort payouts either verdicts or settlements were considered "groundless claims?" Can you comment? A. So you have an 85 percent success rate in the system as it is. If you assume they're right abut that, that's still a pretty good success rate of not paying non-meritorious claims. Q. But could we still do better? A. We could do better by paying more meritorious claims. Most people don't even bother to bring a lawsuit when they're hurt by medical negligence, because it's such a daunting experience for them. They're injured, they don't have resources, and they're disadvantaged versus the (defendant) insurance company. And this is not, I promise you, an area where people are saying, "Gosh, my child has brain damage, Oh boy; I'm going to get rich." If you could meet the parents taking care of a brain-damaged child, you will never see such sacrifice, because it's a 24/7, lifetime job they've been given, because somebody didn't pay attention to a fetal monitor, or somebody didn't want to get up out of bed and come to the hospital, or somebody didn't want to call the doctor and bother him. It's outrageous to me to say that those people should be deprived of compensation because somewhere long the line, someone (else) got compensation who didn't have a meritorious case. Q. Some doctors say a major concern in being sued is not just the jury award itself, but the costs of discovery, lost time, etc. leading up to trial? How would you respond? A. What those doctors ought to be doing -- and again, studies show that insurance companies are making money hand over fist -- maybe those insurance companies, instead of dragging these claims out, ought to take early looks at them, participate in early mediation and get those cases settled for the doctors, rather than dragging every single case all the way to the courthouse. The earlier I'm able to get compensation to my clients, the better, for me and for them. Q. So is it time for lawyers and doctors to unite against who you say are the real villains in this issue: the insurance companies? A. With the depressed stock market and depressed interest rates, insurance companies only have one way to make money and that's to charge their policyholders higher premiums. The stock market's come back, interest rates have come back up, but they haven't cut back on their premiums. (And with the passage of state tort reform laws), they're getting triple windfalls right now. The doctors ought to stand up with us -- which we've asked them to do many times -- and let's fight the insurance companies and get them under control. I think the doctors are being misled by their insurance companies and their leadership about this issue. There are a lot of things we could do together if they would just put aside their natural animosity toward lawyers and being willing to talk.