Dallas Morning News: Malpractice Caps Not Reducing Health Costs

Today’s Dallas Morning News ran a story that looked at whether the cost of health care has declined since the adoption of Texas’s medical malpractice caps.  The evidence concludes that the caps aren’t reducing health care costs for consumers.

Six years after the caps were passed, the doctors have enjoyed lower insurance rates (though rates haven’t decreased as much as they rocketed up shortly before the caps were passed) and Texas has more doctors (though, again, there is debate about why the numbers have increased), but consumers aren’t getting any additional relief.  In Texas, health insurance premiums continue to rise dramatically, and Medicare spending, an bellweather for medical costs, have increased dramatically.

And Texas isn’t alone.  The Dallas Morning News article cites a study by University of Alabama researchers that looked at 27 states, including Texas, that had caps on non-economic damages also concluded that tort reforms have not led to health care cost savings for consumers.  As Michael Morrisey, a professor of health economics at the University of Alabama put it:

The results of the study suggest that there are no insurance premium savings that accrue to consumers.  Are there other benefits to consumers?  If these cannot be identified, it is difficult to see a justification for the loss of legal rights.

To contact Austin Personal Injury Lawyer, Austin Personal Attorney, Austin Accident Lawyer, Austin Injury Lawyer Perlmutter & Schuelke, PLLC or to learn more about Austin Personal Injury visit http://www.civtrial.com/.

Who Knew We Were Responsible For Pirates?

pirate flagAs trial lawyers, we’ve been blamed for a lot of stuff over the last ten years, but today brought a new one. Today, conservative columnist Jonah Goldberg wrote an editorial blaming the “pirate problem” on lawyers. But not just any type of lawyers. Goldberg would never miss the chance to slam us, trial lawyers. Goldberg writes:

And that raises the primary reason this all seemed so complicated. Lawyers. Layers and layers of lawyers. Bret Stephens asked in a prescient Wall Street Journal essay last November, “Why Don’t We Hang Pirates Anymore?” And the answer, he discovered, is that “there is no controlling legal authority.” A combination of international and domestic law has made dealing with what Cicero dubbed “hostis humani generis” — enemies of the human race — just too darn complicated.

Add to this the fact that trial lawyers, bureaucrats and accountants for too long have conspired with corporate honchos to make paying ransoms the least costly option. Shipping companies don’t want their crews armed to defend themselves.

It’s almost comical, except Goldberg seems serious about it. But I guess he didn’t really consider the facts before testing out his theory. According to Goldberg himself, there has now been one American flagged ship and crew taken by pirates in the last 200 years. And that band of pirates was “taken care of”. That doesn’t sound like a “pirate problem” to me. That sounds like an isolated incident.

Now, I’ll admit that overall a pirate problem exists. Pirates are taking ships at an alarming rate. But they’re not American vessels. And I don’t think even Goldberg would claim that American trial lawyers are responsible for attacks on foreign ships. But he conveniently leaves all this out. It’s much easier (and much more fun) to take another cheap shot at trial lawyers.

To contact Austin Personal Injury Lawyer, Austin Personal Attorney, Austin Accident Lawyer, Austin Injury Lawyer Perlmutter & Schuelke, PLLC or to learn more about Austin Personal Injury visit http://www.civtrial.com/.

Study Finds Texas Medical Malpractice Reforms Are Discriminatory

In 2003, the Texas legislature adopted sweeping medical malpractice reforms, including putting a cap on the amount of non-economic damages that plaintiffs could recover. Up unitl now, we’ve had a lot of anecdotal evidence that the caps were unfair, but earlier this week, four law professors (including three from the University of Texas school of law) released a study confirming the anecdotal stories.

The professors looked at how the cap was applied to jury verdicts across the state since the passage of HB4, the medical malpractice statute. I think their statistics were stunning. In cases won by the plaintiff, the damages were reduced by the caps in 47% of the cases. Jury verdicts are supposed to be protected. The jurors are the ones that see the evidence, see the victims and get a first hand look at how the malpractice has impacted the victims. The jurors are in the best position to truly determine the plaintiff’s loss. And, unfortunately, in almost half the cases where the jury finds that the doctor was negligent, the caps mean that the plaintiff isn’t being fully compensated, in the eyes of the jury, for his or her loss.

And just as trial lawyers predicted, the caps are having a disproportionate effect on the unemployed, the deceased and the elderly because these groups don’t have lost wages (economic damages) to prop up their claims. And those are just the cases that are brought and tried. The biggest discriminatory effect might come in case selection. In cases involving the elderly, children and the unemployed, the damages are almost always limited to non-economic damages. It is almost impossible to make these cases work economically. In such a situation, the attorneys are likely being asked to spend $80,000 – $100,000 of their own money (a fairly conservative amount for what it costs to work up a good medical malpractice case) when the best that they can hope for is recovering $100,000 in fees (40% of the $250,000 cap). Add in the difficult nature of medical malpractice claims, and good plaintiff’s lawyers have to turn down almost all medical malpractice cases brought by the unemployed or the elderly.

What does this all mean? During the HB4/Prop 12 debate, one of the constant themes that we heard from Joe Nixon and the tort reformers was the need to eliminate frivolous lawsuits. But this data says the opposite is happening. The tort reform measures don’t stop frivolous claims; they simply reduce the amount of meritorious claims.

To contact Austin Personal Injury Lawyer, Austin Personal Attorney, Austin Accident Lawyer, Austin Injury Lawyer Perlmutter & Schuelke, PLLC or to learn more about Austin Personal Injury visit http://www.civtrial.com/.

Trial Lawyers Doing Good

For the last decade, trial lawyers have been the victims of one of the most successful marketing campaigns ever. Those of us that choose to represent victims of others’ carelessness have been portrayed as sharks, snakes, or worse. It seems that “trial lawyer” is now close to a cuss word.

But trial lawyers do an amazing amount of good for the Country. Today’s National Law Journal has just such a story, describing how twenty Minn. law firms are banding together to provide pro bono representation to many of the victims of the 2007 Minneapolis bridge collapse. One firm (ironically a firm representing the defendants in one suit I have) has agreed to pay $1 million to an engineering firm to help investigate the collapse. All for free.

And this conduct isn’t unique. Following the 9/11 attacks on the World Trade Center, the American Trial Lawyer’s Association (now AAJ) founded Trial Lawyers Care, a non-profit designed to provide free legal services to the victims of the Sept. 11th terrorist attacks. The project, which was the largest pro bono project in the history of American jurisprudence, has expanded to other issues, such as trying to help victims of Hurricane Katrina.

But the good work goes on even at the local level. I think I’m fairly representative of the trial lawyers in Austin. Not only does my firm engage in significant pro bono efforts, but I serve on the boards of local non-profits, am an alumnus of Leadership Austin (class of 2006 — Best Class Ever), volunteer at an elementary school in East Austin, coach my kids’ youth sports teams, and am active in my church. And I’m not unique. You can find various trial lawyers in leadership positions all over Austin helping make this town better for all of us.

So the next time you hear someone throw out the phrase “trial lawyer” as an intended insult, I hope you’ll at least take a minute to appreciate that we do good work too.

To contact Austin Personal Injury Lawyer, Austin Personal Attorney, Austin Accident Lawyer, Austin Injury Lawyer Perlmutter & Schuelke, PLLC or to learn more about Austin Personal Injury visit http://www.civtrial.com/.

The New York Times Tells The Story Behind “Independent” Medical Exams

bad doctorA big issue in personal injury litigation is insurance companies’ use of hired guns to give opinions that our clients aren’t hurt. Sometimes the hired guns simply review our clients’ medical records and sometimes the hired guns actually “examine” our clients. Then the hired guns write reports saying that our clients aren’t injured.

Insurance companies and defense lawyers try to hide the nature of these exams by calling them “independent medical exams.” That name borders on fraud; there is nothing independent about these exams. Unlike treating physicians, whose primary responsibility is trying to make sure the patient heals, the sole purpose of these hired guns is to minimize payments to injured persons.

Those of us that practice personal injury law have known the true nature of these exams, but now the exams are in the public’s eye. Monday’s issue of the New York Times had a great article on the use of “independent” medical exams to reduce payments due New York worker’s compensation claimants. The Times reviewed several cases and interviewed doctors involved in the process.

An enlightening part of the Times’ story compared videotapes of the exams with the eventual reports that were created. The Times noted numerous incidents where “independent” doctors noted on the videotapes that the victims were injured only to have reports show up saying the victims’ injuries were being exaggerated.

The practice was criticized by all involved. The new interim medical director for the NY worker’s compensation board, a physician at Mt Sinai Medical Center, noted:

You go in and sit there for a few minutes — and out comes a six-page detailed exam that he never did. There are some noble things you can do in medicine without treating. This ain’t one of them.

Another doctor involved in the process used to certify these physicians stated:

Basically, if you haven’t murdered anyone and you have a medical license, you get certified. It’s clearly a nice way to semiretire.

One root of the problem is that if the physicians provide opinions adverse to the insurance companies, they know that they won’t be hired again. It’s part of the game. Dr. Hershel Samuels, one of the physicians exposed in the article, stated:

If you did a truly pure report, you’d be out on your ears and the insurers wouldn’t pay for it. You have to give them what they want, or you’re in Florida. That’s the game, baby.

While the article focused on the New York worker’s comp system, the same problems exist here in Texas personal injury cases. The doctors are hired, and they all know the rules of the game: too many findings that victims are injured, and the doctors are not hired again.

Sometimes, the problem goes even further. I recently deposed a doctor hired by a defendant through a third party firm. The defendant hired the third party company and then the company hired the doc. The doc prepared a long report after a quick review of my client’s records, and a major part of the report was a criticism that the charges from some of my client’s medical providers were too high for the services rendered. At the deposition, the doctor admitted that he didn’t have a clue about the charges, but that the company that hired him had filled in that part of the report for him. Even the defendant lawyer seemed to find the situation humorous.

So what do we do? The Times article stated that the best defense is a videotape the exams. When our clients are referred to these defense exams, we push to have them videotaped.

The next remedy is collaboration. Attorneys who are members of the Texas Trial Lawyer’s Association, our state-wide group of lawyers who regularly represent plaintiffs, are wonderful about collaborating with one another for the good of our clients. If my client is referred to an IME doc, I can request information from lawyers around the state. We may be able to get copies of other reports, depositions, etc. You’d be surprised how many docs prepare reports for different patients that are identical to one another. (I tell injured persons that when they hire an attorney, they would be well-served to make sure that the attorney is a member of the Texas Trial Lawyer’s Association, and this collaboration is one of the major reasons for my suggestion.)

I encourage you to read the article and leave your thoughts.

To contact Austin Personal Injury Lawyer, Austin Personal Attorney, Austin Accident Lawyer, Austin Injury Lawyer Perlmutter & Schuelke, PLLC or to learn more about Austin Personal Injury visit http://www.civtrial.com/.

Perlmutter & Schuelke, PLLC maintains offices in Austin, Texas. However, our attorneys and lawyers represent clients throughout the state of Texas, including Dallas, Houston, San Antonio, Forth Worth, El Paso, New Braunfels, San Marcos, Kyle, Buda, Round Rock, Georgetown, Lockhart, Bastrop, Elgin, Manor, Brenham, Cedar Park, Burnet, Marble Falls, Temple and Killeen. By Brooks Schuelke


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