Wednesday, February 2, 2011

The proposal of ACOG for health care liability reform and my ideas

This is an excerpt from an email that I received from ACOG today
I support these ideas in order to make the system more FAIR and transparent.

"Statute of limitations of 3 years after manifestation or 1 year after discovery of injury.
Lawsuits for minors under 6 must commence within 3 years of manifestation or prior to the 8th birthday.

Limits noneconomic damages to $250,000.

Allows punitive damages only if: (1) the claimant proves a clear and convincing standard; and (2) compensatory damages are awarded. 

Limits punitive damages to $250,000 or 2 times the amount of economic damages.
Allows periodic payments of future damage awards over $50,000.

Allows the court to restrict the payment of attorney contingency fees.
Allows introduction of collateral source benefits into evidence.

Does not preempt state law that provides greater protections.

Adopts a "fair share" model, where each defendant would only be liable for those damages attributable to their fault, thus eliminating the incentive to pursue "deep pocket" parties."

End of quote. Her a few comments from me:

Limiting NONeconomic damages is essential. Few lay people understand this. WE are not talking about capping the economic damages, nobody wants to take away the compensation for loss of income, the compensation for medical bills etc.
What we do not like is the "NON"-economic damages, the so called "pain and suffering". Pain and suffering is subjective. As soon as someone knows that he or she can make millions, he or she will experience much more pain and suffering. Believe me, if I was a plaintiff in court, I would suffer a tremendous amount - if millions are at stake. Slip and fall and become a millionaire - what a way to fulfill the American dream! Have postopertive bleeding and become a millionaire - wow! Have repeat surgery and become a millionaire!.
But, people in general are not that sneaky or sleazy. The prospect of gaining (or should we say gaming for) millions in "non-economic damages" or "pain and siuffering" is what drives attorneys. this is where they can make the big bucks, this is where they can rake in the doe, this is what pays for a yacht, for a new mansion and more, this is what turns an attorney into a "rainmaker" for his firm and what advances his career. The millions gained in malpractice suits is what is advertised in TV commercials "XXX millions gained for our clients" - sure, sure "for our clients" - and a 40% share goes into our pockets. They always forget to mention that in their ads.

Southern Florida, Miami, where liability insurance is abusively expensive and consequently many ObGyns do not carry any malpractice insurance, is a great example of what drives malpra tice suits. Once attorneys know that they cannot sue the deep pockets of insurance companies and there is no chance someone will fork over millions to plaintiff attorneys - lawsuits are .....just not done. The usual answer of an attorney to a plaintiff looking for a lawsuit against an ObGyn that has no liability insurance and no millions in personal assets is "Sorry, you do not have a case". Nobody sues a homeless person, nobody sues a poor person.
THAT is the current liability system.

FACT: Remove the prospect of making millions and professional liability suddenly becomes inattractive to attorneys.
this is the true reason why we have an unfair system, where some get "lottery agins" and most stay on the outside and do not get compensated.

I would go much further than ACOG.
I propose "Patient's Comp" - something equal to "Workman's Comp". A patient is injured during medical treatment or due to lack of - he or she submits the case to a committee, which decides based on the facts, based on actual damage and then compensates based on economic loss in a broader sense. Done. No involvement of attorneys required. The money for compensation is paid by a fund, to which physicians and hospitals contribute - in a similar fashion as they now pay liability premiums. This removes the witchhunt like persecution of physicians, the guilt and shame and emotional unease on both sides (patient and physician), it increases open detection and discussion of mistakes and consequently fixing of errors. It makes compensation of injured patients not only much easier, but also much faster - it takes months instead of years!

Why do we not have such a system?
Why do we not apply to medicine what already has worked for the manufacturing industry for decades?
Because the manufacturing industry has better paid, higher paid lobbyists and pushed it through against the financial interests of attorneys! Physicians have not spent enough money on lobbying, that's why.
Malpractice attorneys would lose the chance of making millions and millions, in some caases even billions.
That's why. Follow the money!

We need "Patient's Comp"

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