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9 posts from September 2009

Monday, September 28, 2009

Is the Trial Lawyer Lobby on Life Support?

According to the Washington Times, the Trial Lawyers lobby has been “awash in debt and bleeding members” – to the tune of a $6.2 million operating deficit. 

Now called The American Association for Justice (AAJ), The Trial Lawyers Association’s membership is dwindling just as it gears up to fight any gesture by President Obama to address malpractice reform. 

President Obama’s medical malpractice initiatives are outlined on Dr. Kevin’s Pho’s medical blog.  NJLRA shares many of these objectives with the President:

* Put patient safety first
* Work to reduce preventable injuries
* Foster better communication between doctors and patients
* Ensure that patients are fairly and quickly compensated for medical injuries
* Reduce the incidence of frivolous lawsuits
* Reduce medical liability insurance premiums

According to Pho, the grants to fund his proposed awards in selected states will involve a “competitive three-pronged initiative” with these components:

* Grants for up to $3 million for three years to states and health systems to implement and evaluate evidence-based patient safety and medical liability demonstrations
* One-year grants of up to $300,000 to states or health systems to help the planning process of implementing such programs
* A review of existing initiatives that improve healthcare quality and patient safety and decrease medical liability. This report will be issued in December 2009

Even in its infancy, the Trial Bar is rallying its dwindling troops to block reforms in its broadest and most feel-good sense.  Check out Dr. Pho’s blog to learn more about what the Trial Lawyers are fighting against: http://www.kevinmd.com/blog/2009/09/medical-malpractice-reform-president-obama-white-house.html.   

Friday, September 25, 2009

Health care reform starts with tort reform

Don't miss my Op-Ed in today's Star-Ledger:


Health care reform starts with tort reform

By Marcus Rayner

Star-Ledger Guest Columnist/For The Star...

September 25, 2009, 5:43AM


health-care-reform.jpgA list of offered amendments before the Senate Finance Committee is seen with handwritten notes during a mark up session on the health care reform legislation on Capitol Hill.

Nearly everyone in Congress agrees that health care reform must make care more affordable for employers and families. More small businesses drop or reduce coverage each year due to increasing premiums, and more than three-quarters of Americans worry their income cannot keep up with rising health costs.

Two prominent New Jersey residents recently weighed into the health care reform debate by urging serious medical malpractice reform as an essential component. Like them, we should be paying more attention to how liability reform can make health care reform work.

In a recent New York Times opinion piece, former U.S. senator Bill Bradley, a New Jersey Democrat, recalled the compromises made between a Democratic House and a Republican Senate in passing the 1986 tax reform plan. He argued that the legislative dynamics of health reform are no different, and that "the bipartisan trade off is obvious: combine universal coverage with malpractice tort reform."

Former New Jersey governor Christie Whitman, a Republican, echoed these sentiments. "We ought to be talking more about tort reform," she told the National Journal.

President Obama recently indicated a willingness to consider liability reform, explaining that he believes defensive medicine contributes to rising health costs, and that "demonstration projects" to examine and lower medical liability costs should be considered. While that’s a significant gesture, his actions moving forward will be critical. True health care reform — and health cost savings — cannot occur without reining in excessive medical liability.

The cumulative effect of medical malpractice claims on the health care system is staggering. A 2007 study by the Pacific Research Institute estimated that 3.4 million Americans have been added to the rolls of the uninsured because of medical liability concerns. According to several estimates, 10 cents of every dollar spent on health care can be attributed to the costs of medical liability and defensive medicine. That is as much as is spent on prescription drugs — an expenditure that actually treats patients.

The threat of a medical malpractice lawsuit is ever-present, and it is easy to understand why doctors would want to reduce the risk of liability by ordering numerous medical tests. As such, expensive and medically unnecessary tests are routinely prescribed by health care professionals who have legitimate concerns about the threat of high-cost medical malpractice lawsuits. This phenomenon, known as defensive medicine, is practiced by nearly 80 percent of doctors in the U.S., which costs our health care system $50 billion annually. That’s enough money to fund the entire State Children’s Health Insurance Program for five years.

In addition to what could be saved by cutting back on defensive medicine, $70 billion to $126 billion more could be saved through curbing unreasonable jury awards. Thousands of doctors are sued each year despite their precautions and plaintiffs collect damages in the hundreds of thousands of dollars, even though the Harvard School of Public Health found that 40 percent of medical malpractice claims show no evidence that a medical error occurred.

Of course, the cost of medical malpractice abuse is not merely financial; it also limits access to care. Due to skyrocketing medical malpractice insurance premiums and the threat of a lawsuit, hospitals have fewer physicians willing to work in emergency departments, and fewer specialty physicians willing to work at all.

Obstetrics have been hit especially hard. In 2003, Dolores Williams, an obstetrician, told a joint committee of the state Assembly that the cost of malpractice insurance left her financially unable to continue delivering babies in her Mercer County-based practice. "It became very clear to me that the liability crisis had put me out of business," she said. "I only deliver seven to 10 babies a month. I figured out, in order for me to afford these huge premiums, I’d have to double or triple my volume, resulting in loss of quality care to my patients." Since that time, some OB-GYNs have stopped delivering babies to emergency room patients altogether. In New Jersey, medical liability premiums tripled from 2000 to 2007, while states that have passed tort reform have seen malpractice premiums decrease by as much as 40 percent.

The penchant for lawsuits must be balanced with the desire for affordable, accessible care. Our legal system should provide justice and fair compensation to those who have been truly injured, but it should not encourage and reward opportunistic plaintiffs’ lawyers who view medical liability lawsuits as a cash cow. For too long, the fear of lawsuits and liability have added enormous costs to the health care system, in addition to reduced access to care and slowed innovation. It must change.

Tort reform is a crucial component of health care reform. Only by addressing all the drivers of health care costs — including excessive and often questionable lawsuits — can we make health care more affordable and achieve the goals of health care reform.


Rayner is the Executive Director of the New Jersey Lawsuit Reform Alliance.

Tuesday, September 22, 2009

91 Percent

In the wake of President Obama's commitment to spend $25 million funding medical malpractice "demonstration projects" around the country, many have begun touting the success already achieved in the policy laboratory of the states. 

Yesterday's Washington Examiner carried a piece by David Freddoso discussing the tort reform success in Mississippi.  Writes Freddoso:

Since passing tort reform in 2004, Mississippi has seen the number of medical malpractice claims plummet by 91 percent from its peak. The state's largest medical liability insurer dropped its premiums by 42 percent, and has offered an additional 20 percent rebate each year since tort reform went into effect.

The tort reform in Mississippi wasn't limited to medical malpractice, either.  Mississippi eliminated joint and several liability and made it harder to shop for venue into that state.  Freddoso quotes Mississippi Governor Haley Barbour explaining, "[other companies] wouldn't have really noticed us if it hadn't been for Toyota, and Toyota wouldn't have considered us if it hadn't been for tort reform."

Former Missouri governor Matt Blunt also weighs in about Missouri's medical malpractice reform efforts in today's Wall Street Journal.  Missouri capped non economic damages at $350,000 and strengthened the certificate of merit process for filing a med mal claim.  Blunt writes:

Tort reform works. Missouri's medical malpractice claims are now at a 30-year low. Average payouts are about $50,000 below the 2005 average. Malpractice insurers are also turning a profit for the fifth year in a row—allowing other insurers to compete for business in Missouri. This will drive down costs, which will save government programs money as well as improve the system for patients. It will also leave doctors with more resources to invest in better care.

President Obama need look no further than Missouri, Mississippi and Texas to find demonstration projects that have worked to reduce lawsuits, save money and improve care.  We in NJ should do the same.

Monday, September 21, 2009

Rushing to help their clients...

Saturday's Wall Street Journal points out that in Oklahoma the trial bar is waging a last-minute effort to file frivolous lawsuits before major tort reform takes effect on November 1 of this year. That reform includes a $400,000 cap on medical malpractice claims.  The Journal reports that one prominent Oklahoma law firm, Merritt and Associates, sent a bulletin to potential clients urging them to get their suit in under the deadline, writing "FILE YOUR LAWSUITS NOW!"

What's the hurry?

Dannon settles yogurt suit


Admittedly, I am biased.  I eat Activia yogurt periodically, because like many other people, I enjoy it.  Its advertisements reminding me that it’s packed with probiotics was one of its strongest selling points when I first tried it in 2006.  If I wake up tomorrow and decide I don’t like it anymore, however, chances are high that I will stop eating it. 

Instead of giving up on the Activia challenge, however, some consumers decided that a class-action lawsuit is the appropriate venue to express their distaste for the product.  The Chicago Tribune is reporting that Dannon will change its marketing and labeling to settle a class-action suit, which claimed that its advertisements overstated Activia’s effectiveness.  Apparently, Dannon’s claim that it “can strengthen the body’s defenses or regulate digestion because of bacteria” it contains does not work for everyone.  Of course, Dannon does offer a money-back guarantee for those who aren’t satisfied with its effects, but why stop at the product’s face value when you can file a multi-million dollar lawsuit. 

Dannon’s parent company, French-based Groupe Danone, denied any wrongdoing and said they decided to settle the lawsuit to avoid further litigation and expense.  As part of the agreement Dannon will set up a fund of $35 million to reimburse customers for up to $100 and change its labeling.  That’s a $35 million dollar asterisk.  It also ignores any possibility that one could have purchased Activia for any other reason at all.  Perhaps the Jamie Lee Curtis commercials really aren’t that effective after all. 

Once the settlement is approved by a U.S. District Court in Ohio, consumers will be able to file their claims online.  I’m interested in seeing whether I would qualify for the reimbursement.  While it’s not as grand as $35 million, I can buy a lot of yogurt with $100. 

Wednesday, September 16, 2009

NJLRA's Fall Membership Luncheon

Thanks to everyone who came to NJRLA's Fall Membership Luncheon.  It was great to see so many new faces in attendance. 

In case you missed it, NJLRA members heard from surrogates for the Corzine and Christie campaigns about legislative initiatives which may impact the business community and taxpayers alike.  Assemblyman John McKeon (D-West Orange) and Assemblyman Jay Webber (R-Whippany) each articulated their respective candidate's opposition to the "More Lawsuits, Higher Taxes" legislation.  McKeon noted that Governor Corzine vetoed this legislation last year, effectively saving the State and its businesses from being vulnerable to pay unlimited damages in wrongful death cases.  

Assemblywoman Caroline Casagrande (R-Freehold), who is a member of the Assembly Judiciary Committee, underscored concerns she had as a new mother about the most qualified doctors choosing to practice in less lawsuit-prone states. 

You can read more about Assembly McKeon’s speech on PolitickerNJ’s site, at http://www.politickernj.com/njdsc/33154/mckeon-good-governance-about-striking-balance. 

Thursday, September 10, 2009

Here’s one field that’s recruiting

If you grew up in the 80s like I did, you might remember a T.V. commercial featuring highly-caffeinated, over dramatic actor, instructing to drop everything right now and call “1-800-lawyers.”  It went something like this:

“If you’ve been hurt by anything, a car accident, a fall, a doctor or hospital… you may be entitled to a large cash award… We’re there, right now, to answer all of your questions – absolutely free.” 

It was followed by the sound of a touch-tone phone banging out the catchy tune of “1-800-lawyers,” along with a reminder that these hard working actors are there for you on New Year’s Eve at midnight. 

Perhaps the bad acting was partly to blame, but just for a moment, after watching it you actually thought the world was about to come to an end.  Even with my comparative indifference to the value of a dollar back then, for some reason even I wondered what would happen if I called. 

I was reminded of this commercial this morning, when I read that according to one study, Trial Lawyer TV ads for medical malpractice lawsuits grew 1,400 percent during last four years.  During the same four year period, New Jersey’s unemployment rate has grown from 4.9 to 9.3%, the number of frivolous lawsuits has escalated and forced scores of businesses to leave the State for greener civil justice pastures, and insurance premiums have skyrocketed. 

Thanks to the wonders of Google, I was able to resurrect an abridged version, though its featured actor’s attire screams “1989” much less loudly than the original. 

These commercials allow trial attorneys to both exploit legitimate victims and solicit coffee-spillers in a barrage of 30-second breaths.  Unfortunately, it seems that they are succeeding. 

Thursday, September 03, 2009

It's Never About the Money

Often during the course of civil justice reform debates, trial lawyers – or ambulance chasers, as they’re often known – portray themselves as nothing more than well-paid advocates, trying to bring about justice for those marginalized by some careless corporate entity.  They will insist that it’s not about the money they receive after winning seven and eight figure awards for their clients, who may or may not have suffered actual harm.  It’s about doing the right thing for others. 

One trial attorney was recently cited for his blatant doublespeak.  Richard J. Weiner, of Montvale, New Jersey, recently settled a civil action presented by the U.S. Attorney for the Western District of New York.   He admitted to soliciting families of victims from February’s deadly Colgan Air Flight 3407 plane crash in Buffalo before even 45 days had elapsed.  Federal law prohibits lawyers from making unsolicited contact with victims or their families within 45 days of an air carrier accident.  Common decency does the same thing.

Gary Halbert, the agency's general counsel, said that the 45-day rule is needed to prevent victims from being taken advantage of during a period of intense vulnerability.  Halbert also argued that “It’s during this time of an extreme emotional distress that the family members should avoid being deluged and distracted.”   

50 lives were lost on February 12th.  Would it have greatly inconvenienced Mr. Weiner to wait a few weeks before he tried to pad his bottom line – excuse me – advocate?

Tuesday, September 01, 2009

Healthcare Townhall Meetings Should Address Medical Malpractice

In recent days, the national health care debate has finally begun to underscore a key policy issue that will be a crucial element of any health care remedy’s success or failure: tort reform. 

Medical malpractice suits have, after all, been a significant driver in our nation’s escalating healthcare costs.  Some doctors screw up, of course - sometimes very badly.  Should they pay for their mistakes? Absolutely.  But good doctors who get caught in the crossfire of frivolous litigation by way of crippling malpractice insurance premiums - and patients like you and me, who typically undergo scores of unnecessary procedures to reduce doctors’ chances of being sued and pay the price with our time and higher insurance premiums – are the folks we care about. 

When asked why tort reform has rarely been mentioned as our lawmakers brainstorm the best way to provide health care to the most people at the lowest cost at a town hall meeting in Red Bank, Congressman Frank Pallone (D-6 )summarized it in two sentences.

                “A cap on damages won’t fly,” he said.  “We don’t have the votes.”

According to former DNC Chairman and Presidential Candidate Howard Dean, M.D., Congressman Pallone is right.  In a moment of trademark candor, Howard Dean said the following:

“The reason tort reform is not in the [health care] bill is because the people who wrote it did not want to take on the trial lawyers in addition to everybody else they were taking on.  And that’s the plain and simple truth.”   You can listen for yourself here. 

Even President Obama acknowledges that his health care plan cannot succeed unless doctors are freed from their fear of frivolous lawsuits.  It's unfortunate - and shocking - to think that the trial bar might prevent Congress from passing some needed reforms just to line their own pockets.  More shocking is that congressional leaders would listen to the concerns of the trial bar over the needs of patients and doctors.

Perhaps the amount of compromise needed to accomplish both in one bill is more than congressional leaders want to make right now, but they should do it anyway.

We at NJLRA believe that omnibus tort and health care reform legislation can address both the need to reduce lawsuits and the need to expand health care affordability and accessibility.  It is now part of the national debate, and we're glad to see it getting some attention.