FLASH! Sunday, March 21, 2010, 6:00 p.m. Las Vegas time:
PELOSI, REID AND OBAMA AND THE NATION TRIUMPH!
In 1936, Franklin Delano Roosevelt offered a new bill of rights that would supplement the list of rights embedded in the U.S. Constitution. Among the new rights that Roosevelt advocated was the right to health care. The U.S. Legislature did not pick up on Roosevelt's idea, and the new American "rights" died with Roosevelt in 1945. Not a single right on Roosevelt's list became law.
This historic weekend, the country enacted a law that makes health care a right (and a duty) in America. While still work in progress, the new health care reform act that creates the right to health care for every American national took a dramatic turn for the finish line when President Obama refused to be intimidated by the recent Democratic defeats in New Jersey, Virginia and Massachusetts.
Grown men and women openly wept when the first black President was elected on November 4, 2008. This time, everybody was all smiles. It was a giddy moment for the Democrats and the country. Everybody in this country will remember what they were doing the night health reform passed.
All of us, you and me, are witness to history. Never before in this country has health care been considered a right of every American. It has taken a black President to get it done. It has taken all of conscience-stricken America to prod him on, telling him he was on the second yard line, all he needed to do was to punch it into the end zone.
Yes, like "all" that was needed was to soften the muscles of the huge defensive linemen, the Republican misinformation machine. In one gigantic muscle coordination move and rocket-like leap, the President, Speaker Pelosi and Senate Majority Leader Harry Reid - all blocking for each other - punched the ball into the end zone.
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I may have made enemies last week, or at the very least I may have tried and tested some friendships, when I openly questioned the present system that rewards U.S. doctors as capitalists rather than reward them as public servants, which most of them are, and which is the way most doctors are treated in other countries - advanced, developing or underdeveloped.
A doctor in Las Vegas has surrendered his license because of the huge scandal
that resulted from the terrifying news that his clinic had reused needles and
that thousands of patients at the clinic had contracted hepatitis B. No HIV
cases had been found, or more appropriately been broadcast to the public, but
suspicions are rampant that there may have been such cases.
The doctor operated on the principle that he was a capitalist and that his first
obligation was to himself and his employees. His first obligation, in his mind,
was to maximize the profitability of his enterprise.
Doctors in most countries are franchised by governments to serve the public good and the systems in those countries afford doctors a comfortable lifestyle but not ordinarily an opportunity to create huge personal fortunes. The U.S. is one of a very few countries that consider the practice of medicine as a capitalist franchise.
Because of the magic of capitalism, huge fortunes are being made by doctors in the U.S. That is why lawyers and the public are holding doctors to heightened scrutiny and unusually high standards.
The nature of work, especially delicate and demanding professions such as doctoring, is that mistakes are inevitable. It is estimated in one study that 80,000 medical malpractices occur every year in the U.S. Of those 80,000, only 10,000 actually result in lawsuits. And out of those 10,000, 96% are settled out of court. Only 4% of the 10,000 - or 400 - actually go to trial by jury.
Insurance companies that issue malpractice insurance to doctors are therefore "saved" by the system. The 96% of the cases that are settled out of court cost the insurance companies an average of $125,000 while those that go to the jury average $235,000 in awards. My statistics do not reveal if the cost figures include the cost of insurance company lawyers. I apologize for not knowing.
The message is clear. Insurance companies are highly motivated to settle malpractice suits out of court because no matter how good their lawyers are, plaintiffs will nearly double their awards if the cases go to trial.
The lawyers know this, and short of encouraging frivolous lawsuits, lawyers tend to advice their clients to sue on the slightest provocation. They know they will collect regardless of merits, what more if there are compelling reasons to sue.
Assuming in all this, of course, is that it is not a frivolous lawsuit.
Chances are, it is not a frivolous lawsuit. People make mistakes, especially when they are on a steep learning curve. Doctors especially, when they are under stress and are making life-or-death decisions.
It is therefore unrealistic for the public to expect that doctors will not make mistakes. They will and they do. Every day. And they will continue to make mistakes. And they will continue to cover up those mistakes.
The public's defense is to know as much about their doctor as they possibly can. They must research their surgeon's credentials before they agree to lie on the operating table.
They look into the horse's mouth, don't they, before they buy the horse?
When I was starting out in college in the traditional world of business, there was the caveat emptor rule (Let the buyer beware). It was only recently that the world has been evened out for consumers through consumer protection laws.
For patients, however, it is always wise to assume that caveat emptor rules. Pretend that there are no consumer protection laws. Besides, the government cannot prevent, no matter how tough the laws, doctors from making mistakes. While the law will grant redress, doctor's major mistakes cannot be undone.
The patient is never the same, even after being showered with malpractice money awards.
And, though malpractice awards and settlements are for the most part modest, some awards have been huge, enough to slam the knees of insurance company executives:
Failure to timely diagnose, $10,200,000 settlement (Feb. 11, 2010).
Breast Cancer lawsuit, $17,500,000 settlement (Oct. 30, 2009).
DeKalb County birthing malpractice lawsuit, $15,350,000 settlement (May 23, 2008).
Medical malpractice lawsuit awarded by jury, $60,000,000 (February 18, 2010).
The Disability Insurance Resource Center website lists hundreds of awards and settlements, each one potentially if not actually ruining a doctor's career.
Do you see anything wrong with this picture? I do. We know that doctors will make mistakes. Experience tells us that these mistakes are often unavoidable, which is why malpractice insurance is a major source of revenue for insurance companies that offer them.
If you combine the universality of malpractice insurance policies with the certainty of mistakes occurring in the practice of medicine, you are looking at a gold mine for lawyers. Lawyers will get their 30% - after expenses - whether the plaintiffs settle or the case goes to the jury.
While awards are generally modest and reasonable, there have been very expensive cases to settle or litigate. Insurance companies must set their premium rates according to the possibility that any malpractice case will result in huge settlements or jury awards, tempered only by actuaries' estimates of what the likely breakdown will be between major news-making awards and usual and customary awards.
A recent study demonstrates that in the long-run, as the size of awards have gone up, the premiums charged by insurance companies have also gone up. In insurance underwriting, premiums are set on the basis of potential maximum losses, not on best-case scenarios. This is why malpractice insurance premiums have gone through the roof in this country.
The cost of malpractice insurance, especially in some professions such as obstetrics, gynecology, oncology and all kinds of surgery, has become so prohibitive that doctors have been known to take the early retirement route or branch out to other fields.
Doctors are being squeezed by insurance companies that are on a drive to tamp down the fees charged by doctors, and from below, by the cost of malpractice insurance.
This is the cruel present, but the promise of the future is worse. The doctors who bail out further exacerbate the shortage of doctors in many areas of the U.S..
Something must be done. The country cannot continue on this road to higher and higher malpractice insurance premiums because of higher and higher settlement and jury awards in malpractice cases.
Obama, Pelosi, Reid and others in the Democratic Party have done the heavy lifting in the struggle to provide health care to most Americans. They must now even the playing field for doctors and insurance companies.
The jury awards in malpractice cases must be capped. The Bush administration proposed capping jury awards to $250,000, with exceptions for egregious cases. Obama seems to be open to the suggestion, though the $250,000 figure is arbitrary and likely to change.
I advocate this change because I know that doctors do make mistakes, and it is the responsibility of everyone to select doctors that are least likely to make mistakes. How does one do this? By researching the doctor's qualifications. The Internet has so much information that one can use. Patients should beware of doctors about whom there is little information on the Internet.
Patients must also gather information by word of mouth, from other doctors, nurses or hospital administrators.
We do a thorough research before we buy a new car, it is only fitting that we ask a lot of questions before we agree to being treated by a doctor, or God forbid, being opened up by them.
When we make the final decision on the choice of our doctors, implicit in that decision is that we are partly responsible for what results from that choice. If our doctor makes a mistake we are partly to blame because we chose that doctor.
While this does not absolve the doctor of responsibility for loss of income or loss of job (economic losses), the more lucrative type of settlement or award (pain and suffering and punitive) would be removed from the equation. Should that happen, settlements and jury awards would tend to drop dramatically.
This makes a lot of sense. Let me restate my case in plainer terms. Assuming that we choose our doctors intelligently, what the doctors do to us is partly our fault. If we suffer pain and suffering, it is ultimately because we made the wrong choice. Punitive damages would be unavailable to us because we were a part of the decision making in the choice of our doctor.
Insurance companies are granted by states a certain profit margin based on their expenses. If their expenses are high, their margins are bigger and the total cost of malpractice insurance is high. If their expenses are low, their margins are smaller, resulting in the cost of malpractice insurance going down.
If the cost of malpractice insurance goes down, doctors' fees assuming a rational world would also tend to go down. As more doctors return to the practice of medicine because they are no longer intimidated by the cost of malpractice insurance, the doctor shortages occurring in many parts of the U.S. will be alleviated.
The increase in doctors practicing in their fields will tend to keep doctors' fees from spiraling ever upward, and in fact may result on doctors' fees going down. But don't hold your breath for that one.
Of course, we could short-circuit this whole process by eventually going to a single-payer health care system, a Medicare for all system where the Federal government covers all Americans and most doctors no longer make the huge fortunes that they build over their lifetimes. Doctors would be just like every body else in this country. They have to be truly outstanding in their professions in order to earn huge fortunes over their lifetimes.
The lawyers would just have to find others to sue for big bucks.
(Nest week: The pharmaceutical industry.)
