ThePopTort

It’s Med Mal Quiz Time Again!

Hey kids, it’s our favorite time of year – PopTort Pop Quiz time! Our first of 2022 on the important topic of medical malpractice and health care. I just know you've all been studying very hard. So let’s go!

1. What percentage of injured patients who win their cases actually receive what a jury awards them:

1. 100%
2. 70%
3. 50%
4. Less than 30 percent

The answer is "d." According to new research from 6 top medical malpractice researchers, 74 percent of patients receive less than what a jury awards “whether the wrongdoer is a physician, hospital or nursing home.” They say that there is a “large gap” between what juries award and what insurers actually pay, which is far less. Industry campaigns focused on jury verdicts are “disingenuous, based on an incomplete and potentially misleading factual foundation.”

2. The chance of a physician having to personally cover the difference between a large jury award and their smaller medical malpractice insurance policy limit is:

1. 100%
2. 50%
3. 25%
4. Less than 1%

The answer is once again “d.” According to the same new research from 6 top medical malpractice researchers, “in only 0.6 percent of cases did physicians make any out-of-pocket payments, and most of these were relatively small. Essentially, physicians’ policy limits are a hard cap on recovery.

3. A new physician survey finds that roughly 1 in 5 are considering leaving their current jobs to pursue a nonclinical career. The top reason given by physicians was:

1. Risk of being sued
2. General burnout
3. Need to reduce hours
4. The pandemic

The answer is “b" for burnout! According to the survey, risk of being sued is not a factor. And “only 7% put the blame for leaving clinical practice squarely on the pandemic.” However,“Burnout was most often cited as the primary reason for considering a change; 34% gave this reason. Twenty percent said they wanted to work fewer hours.” The risk of being sued is not a factor.

4. True or False: Most doctors who have been sued believe the outcome of the lawsuit was fair.

That would be “True.” According to a new Medscape survey, “A majority — 61 percent — of doctors who were sued “believed the outcome of their lawsuit was fair.” Moreover, “More than half of physicians who were sued reported that there were no attitude or career changes after the experience, which is consistent with results of prior surveys.”

5. When asked if they’d been sued for COVID-related negligence, what percentage of doctors surveyed in 2021 answered "yes, they had been sued":

1. 100 percent
2. 50 percent
3. 10 percent
4. 0 percent

The answer is “d.” When asked whether they’d been sued for a COVID-related allegation, 100 percent of respondents said no.  That's the "wave" of lawsuits some insisted was coming.

6. Surplus - the extra money medical malpractice insurers set aside over and above what they keep for expected losses - did what during pandemic:

1. Dropped
2. Stayed the same
3. Increased

The answer is “c.” According to the October 2021 issue of Medical Liability Monitor, thanks to a stock market windfall, the industry saw “a surplus increase of almost 3% in 2020, bringing total surplus to the MPL sector to more than $33 billion.” Astounding.

Bonus Question:

True or False: More than 140,000 nursing home residents have died from COVID-19.

Sadly, this is "True." According to the most recent government data, as of the week ending December 26, 2021, more than 754,500 nursing home residents had contracted COVID-19 and over 142,300 residents had died from COVID-19

Of course, all of this information and much more can be found in the Center for Justice & Democracy at New York Law School’s new briefing book, Medical Malpractice – By the Numbers!  Study up.  You never know when quiz time will pop up again!

A Civil Justice Top 10 Thank You List

Here’s our Thanksgiving gift to you because sometimes things do go our way and we need to talk about that! Everyone feel better, and Happy Thanksgiving.

1. Congress quit “tort reform.” For 15 years, there has not been a serious “tort reform” effort in Congress. That’s when, in 2006, the last of seven bills to cap damages for medical malpractice victims was brought to the floor and decisively killed in the U.S. Senate even though the “tort reform” party controlled Congress, “tort reformer” in chief George W. Bush was President, and members of Congress were under enormous pressure to succumb to medical and insurance industry pressure. (Doctors had been suffering through four years of unnecessary price-gouging by medical malpractice insurers.) That happened because civil justice advocates effectively pushed back. While the U.S. House may pass bills now and then, they now arrive DOA in the Senate irrespective of who's in charge.

2. Judicial progress. Yes, the federal courts were decimated during the Trump/McConnell years. But the Biden/Schumer years have made much headway turning things around. Quoting our good friends at the Alliance for Justice, “President Biden has already seen more judges confirmed in his first year than the past five presidents, and he shows no signs of slowing down. With each slate, we see his continued commitment to bringing more professional and demographic diversity to our courts.”

3. Support for civil justice is bi-partisan. The “tort reform” movement finds itself no longer fighting just its traditional opponents - Democrats and progressives - as they had been for the first 30 years of the “tort reform” movement. They are now fighting people of their own political party and conservatives – and they are losing. Conservatives helped stop a bad class action bill and federal tort reform, and are now supporting a bi-partisan bill to ban forced arbitration clauses for sexual harassment cases. Who thought we’d ever see that?

4. Forced arbitration is backfiring. Speaking of forced arbitration, who saw this coming? As we wrote last July, “Amazon decided to give up its ‘forced arbitration’ requirement and allow itself to be sued in court. Why?  Because they were outsmarted. Specifically, rather than dropping claims, more than 75,000 Echo users, who were very angry that these Alexa devices were recording them without permission, filed for arbitration, hitting Amazon with a bill for ‘tens of millions of dollars in filing fees.’” Yet smart lawyering isn’t the only trigger for this development. Other big companies, like Google, have also dropped their forced arbitration clauses following major grassroots organizing. The company-by-company approach can’t replace Congress’ much need action on the FAIR Act, but the public education that has surrounded these developments can’t be overstated.

5. Unlikely courts have struck down caps. While not every state supreme court has struck down caps on damages, several surprising decisions have done so in conservative states and/or in states where courts had earlier ruled differently (e.g., Kansas, Oklahoma, Oregon). As a result, less than half the states (24) have laws that specifically cap non-economic damages in medical malpractice cases, which is the most popular kind of “tort reform” proposal. And only nine cap non-economic damages generally.

6. Research comes through. Often the insurance industry can bamboozle politicians despite the best efforts of civil justice advocates. (See what just happened in Louisiana.) But enough time has passed since many “tort reform” laws have been on the books, that credible, in-depth academic research about the impact of these laws is possible. And it’s showing “tort reform’s” failure at every level. That’s true even when it comes to the most common “talking point” in support of such laws: bringing down costs. Caps on damages, for example, cause system costs to actually increase, not decrease! See the book Medical Malpractice Litigation: How It Works, Why Tort Reform Hasn’t Helped, written by six top medical malpractice researchers, published by the conservative Cato Institute, no less. And let’s not forget survey-type research, like this one from one “tort reform” lobbying group. They say that for small businesses, the issue of “lawsuits” is of less importance than almost any issue small businesses could possibly face, or on which they want lawmakers to focus. 

7. New media is smarter. Gone are the days when press releases from manipulative industry PR operations with a lot of money, sent to traditional media outlets, become the only way people hear about civil justice issues. If you want to see how that used to happen, catch the documentary film Hot Coffee, which showed the destructive impact of that PR machine. But there is much more skepticism these days, and many more popular outlets want the truth. Take, for example, the very popular podcast “You’re Wrong About That,” which consistently ranks at the top of podcast episode and show lists. Here’s what they tweeted when they re-ran this year their episode on the McDonald’s Hot Coffee case which (like the film), debunks many anti-civil justice myths about this case: “This is by far our most requested episode! We're a little reluctant to do it simply because the ‘you're wrong about’ narrative is so well-known at this point. But maybe it's worth looking into anyway!” It's not the mid-1990s anymore.

8. Insurer price-gouging not working for them. Volcanic eruptions in insurance premiums for commercial customers (businesses, doctors) occurred the mid 1970s, again in the mid-1980s, and the early 2000s. While lawsuits had nothing to do with why premiums suddenly jumped, each time the industry responded by successfully pushing states to enact “tort reform” laws stripping victims of their legal rights. Now we are in the fourth such cycle. Insurance prices have been rising since 2019. But unlike in the past, today insurers have been unable to exploit their own mismanaged underwriting to push for similar “tort reform” laws. Why? Perhaps it’s because no one believes lawsuits caused insurance premiums to rise in a year when the civil courts and juries were essentially shut down. Or maybe it’s that the industry is sitting on a record-breaking trillion dollar surplus. Or maybe, people are just wising up to how this dishonest industry operates..

9. Law students emerge as a force. Law students have never been more politicized and active on civil justice, corporate accountability and court issues as they are now. People's Parity Project has emerged as a critical new voice on these issues, growing out of a movement at some of the top law schools in the nation. The [F]law is a new publication from Harvard Law School students, with a mission “to share stories that reveal how corporate law and power create social problems and systemic injustices.” And there’s been a huge jump in law school enrollment due to a number of factors including “continuation of what is called ‘the Trump bump’” and “what happened in 2020 — including the police killing of George Floyd and the racial justice movement that arose from it — spurred more applicants, she said, as did the death of Supreme Court Justice Ruth Bader Ginsburg and the confirmation of a controversial successor.” Can’t wait to see what these students do when they make it into the workforce.

10. Finally, we are thankful for everyone who pays attention to ThePopTort, the work of the Center for Justice & Democracy, and all the amazing advocates we work with. Have a very Happy Thanksgiving!

Patients and Andrew Cuomo – Our Parting Shot

As New York City residents, we at ThePopTort were mesmerized by part 1 of Spike Lee’s astonishing NYC Epicenters 9/11-2021½, which began airing last night on HBO. But I fully understand if you missed it. It was a bit like watching someone else’s home movies. Also, it forces us to rehash the horrors of a few unpleasant characters  - although seeing the hilarious way Spike chyroned “a certain former President from Queens” was worth the whole thing. There’s actually a lot of humor in this series.

Peppered throughout, of course, is New York Governor Andrew Cuomo, who leaves office today. Just like his dad Mario, Andrew used his (10!) years as governor to do damage to the rights of patients harmed by negligent health care. This mission of his began as soon as he stepped into office and ended with the pandemic. ThePopTort was there for all of it so we decided that now would be a good time to do an Andrew Cuomo retrospective. For history, you know.

Within weeks of taking office in 2011, Andrew set up a task force under the guise of Medicaid “redesign,” primarily as a ruse to give New York’s powerful hospital lobby a way to force “tort reform” onto injured patients when clearly such laws would never pass on their own. The task force “recommendations” were two-fold: a $250,000 cap on non-economic damages, and a state fund to pay for the medical care of babies catastrophically harmed due to negligence at birth. Note that qualifying families would have to have already won their legal case and should already be entitled to full compensation. Instead, these families would have to beg the fund for money. Imagine putting such additional burdens on families that already face unimaginable challenges caring for a profoundly disabled child - while leaving the responsible hospital essentially off the hook.

Cuomo’s task force team, dominated by his hospital friends who would financially benefit from these laws, met secretly and made recommendations that went straight into the governor’s budget. The Center for Justice & Democracy filed an ethics complaint against Cuomo’s task force for this. His response was two-fold: publicly attack and try to bully CJ&D via his large bully brigade; privately, feeling the political heat, pull the damages cap out of this budget. But unfortunately, the baby fund stayed. It’s really what the hospitals wanted anyway.

Once the hospitals got their big prize, things calmed down a bit. Not completely, of course. For example, we wrote about how Cuomo later stuck a provision into his executive budget to make it easier for incompetent doctors to hide their malpractice records. But at least “tort reform” seemed to be off the table for a while.

Then came COVID. Cuomo almost immediately immunized hospitals and nursing homes from liability during the pandemic, slipping this immunity law into his budget at a time when almost no one noticed – except, of course, his hospital lobbyist friends who wrote it. This, by the way, included hospital systems that kept suing patients throughout the pandemic over unpaid medical bills. Cuomo’s immunity law became the blueprint for many states, often expanding immunity even beyond New York’s law with disastrous results particularly for nursing home residents. Cuomo's friends also went to Washington to help Sen. Majority Mitch McConnell write a national immunity bill. McConnell then held the nation hostage by demanding that Congress pass corporate immunity before allowing the country to get any stimulus relief.

Fortunately Cuomo’s friends didn’t get their way in DC. Their NY law was eventually reversed by the NY legislature and Cuomo’s nursing home legacy, as bad as it looks now, has yet to be finally written. But he’s finally out. Or as CJ&D Executive Director Joanne Doroshow put it to Mr. Cuomo back in 2011, “after you apply the facts to the law, that sound you'll hear is the steel trap closing on you.”

See ya!

In Medical News Today, Too Few Lawsuits Means Too Many Deaths

Too many people are dying of medical malpractice, or in dangerous nursing homes, or after being implanted with unsafe medical devices - because not enough people are suing. There I said it. Not enough lawsuits. Preventable death is what happens when accountability is weakened and information stays hidden. And politicians who kowtow to the insurance and medical lobbies are mostly to blame for this. And I’m sick of it. I’m sick of whiny insurance companies, sitting on boatloads of money while they raise rates on doctors and then falsely blame injured patients who rarely file lawsuits. Yet insurers still work to take away their rights.

I was reminded of this recently as the fog of COVID health care immunity laws began to lift and articles started surfacing about the ongoing state of patient safety.

Preventable Medical Errors are Rampant

Medical harm is “so widespread, so frequent, so massive, and so continuous that it rarely makes headlines,” wrote authors Michael Saks and Stephan Landsman recently in STAT (based on their new book). Put another way,

Death by medical error or accident is the nation’s leading cause of accidental death, exceeding all other causes of accidental death combined. Medical error and accidents kill approximately as many people each month in the U.S. as Covid-19 did before vaccines became available.

How have states responded? But stripping patients of their legal rights and then looking the other way, leaving patients to die. Take Dr. Death in Texas, one of the rare cases that actually did make headlines and even more unusually, has received Hollywood attention. Billy Corriher wrote in Facing South: 

"Dr. Death," a new drama on NBC's Peacock that was inspired by a true story, offers a disturbing look at the life of an incompetent Texas neurosurgeon named Dr. Christopher Duntsch, played by Joshua Jackson, and the patients he maimed.…

In the sixth episode, the show lays out how Texas law makes it nearly impossible to sue health care providers, meaning there's little accountability for negligent care or hiring decisions. A widower named Earle Burke, played by Grainger Hines, says that "no lawyer would take up the case" against Duntsch because of Texas' "tort reform" laws that make it harder to sue negligent doctors. 

Nearly half of all medical errors are preventable. In other words, a large chunk of patients (44%) would have a case if they could – or wanted to - go through the time, trouble and expense of going court. Yet almost no one sues. If they do decide to go to court, it’s extremely hard for patients to win these cases. And even if they do win, injured patients are generally severely undercompensated. (Lot’s of studies about this here.) And to top it all off, medical lobby groups have such control over public officials that even the worst, most incompetent physicians practice with impunity. 

Nursing Home Infection Controls Are STILL Bad

Could there be anything more tragic than the lack of COVID (and other) infection controls in nursing homes? Yet deadly COVID is still a problem as too many staff members remain unvaccinated. If only a strong civil justice system were available to ensure some accountability for nursing home negligence. But between dual “get out of jail free” cards of (COVID-related) legal immunity laws passed in most states and forced arbitration clauses used by most nursing homes, patients and families are faced with enormous legal hurdles if they try to hold a nursing home accountable for making these frail residents live in lethal Petri dishes.

Implanted Medical Devices Are A Horror Show

A new ProPublica article exposes a problem that actually is shockingly common: defective implanted heart devices that are allowed by the Food and Drug Administration (FDA) to go horribly wrong, and leaving patients (and surviving families) with neither medical nor legal recourse. This particular piece is about the HeartWare Ventricular Assist Device, or HVAD. As ProPublica writes,

The HVAD was implanted into more than 19,000 patients, the majority of whom got it after the FDA found in 2014 that the device didn’t meet federal standards. By the end of last year, the agency had received more than 3,000 reports of patient deaths that may have been caused or contributed to by the device.

But the FDA repeatedly failed to insist that the manufacturers, HeartWare and Medtronix, fix the devices’ problems. Even worse,

Patients with HVADs have little choice but to hope the devices keep working: The surgery to remove HVADs is so risky that both Medtronic and the FDA advise against it. The device is meant to be left in place until its wearer gets a heart transplant. Or dies.….

There are [] few documents available in state courts about faulty products, because of restrictions on lawsuits related to medical devices. The restrictions date back to a 2008 Supreme Court decision in a case against Medtronic. The court found that U.S. law bars patients and their survivors from suing device makers in state court, essentially because their products go through such a rigorous FDA approval process.

Congress has still not fixed the law to provide patients with defective heart implants some opportunity to go to court, get compensated, and hold medical device companies accountable in ways the FDA has so miserably failed to do. But sadly I suspect we may be waiting a long time.

PopTort PopQuiz, Home Edition

Kids, I know many of you are still working from home and have had it about up to here with remote learning by now. So let's try something fun: a new PopTort PopQuiz! Thanks to the Center for Justice & Democracy's new updated medical malpractice briefing book, we have all kinds of new info about what’s going on in the world of unsafe health care. (Yikes!) Enjoy!

1. True or False: Researchers who extensively reviewed physician surveys, clinical scenario studies and case data analyses found a good deal of support for the notion that the practice of “defensive medicine” (doing costly and unnecessary tests and procedures for fear of being sued) pervades the American healthcare system.

Answer: False. Rather than a good deal or even a fair amount of support, they found “little support” for this notion. They added, “Consequently, reforms of tort law are unable to make much of a contribution to bringing down America’s unusually high healthcare costs.”

Nor, it turns out, will “tort reform” impact doctors’ insurance rates. That’s the conclusion of still other researchers!

2. Liability concerns are often blamed for too many C-section births in U.S. hospitals. When researchers compared the number of C-section births in military hospitals (where doctors have no liability) to those in private civilian hospitals (where doctors can be held accountable for medical negligence), they found that C-sections are:

a. 50 percent more common in civilian hospitals

b. 20 percent more common in civilian hospitals

c. 5 percent more common in civilian hospitals

d. More common in military hospitals

The answer is “d.” Researchers found: “C-sections are about 4 percent more common during the deliveries at military hospitals, compared to the times when mothers in the Military Health System deliver at civilian hospitals.”

3. The primary driver of physician shortages are (select all that apply):

a. More doctor demand due to population growth

b. More doctor demand due to an aging population

c. More doctors retiring

d. Malpractice insurance rates

e. Liability (tort) laws

Answer: If you selected a, b, or c, you would be correct. If you picked d or e, you’d be wrong. This is according to the work of the Association of American Medical Colleges, no less. 

4. Bonus Question: It’s your surgeon’s birthday! It’s a good idea to:

a. Share the celebration by having surgery that day

b. Stay clear of any treatment from your surgeon that day

c. None of this matters - what a ridiculous question

Answer: Ha, you wish it didn’t matter. The answer is “b”. Stay away. According to research, the “30-day mortality rates are approximately 23% higher for patients 65 and older who are treated on a surgeon’s birthday.” 

Mitch McConnell’s Irony?

Remember when one of the biggest controversies of the year was whether any of the situations described in Alanis Morissette’s song “Irconic” were actually ironic? Irony is not easily defined and is often mistaken for other things. So let me run a situation by you, and you tell me if it seems ironic to you.

By now, you all know the outcome of last week’s impeachment trial. Probably just as likely, you heard about Senate Minority Leader Mitch McConnell’s speech tearing into Trump even though he voted to acquit. As part of his speech, he made sure to remind everyone about the importance of both criminal prosecution and civil litigation to hold Trump accountable. Most recognize that this speech was a politically-convenient way for him to justify the Senate’s failure to convict. But also, it seems ironic for him to be laying the survival of our democracy on a system that, for decades, he has made it his work to weaken or destroy … no?  

McConnell is not your average civil justice opponent. He’s the Senate’s leading “tort reformer”. We first noticed this when, in the late 1990s and early 2000s, McConnell led the fight to federalize the nation’s auto insurance system. His bill, euphemistically called the Auto Choice Reform Act, basically would have forced motorists into one of two unfair insurance systems, one of which would have deprived seriously injured victims of adequate compensation.  

From the mid-1990s through the 2000s, Sen. McConnell repeatedly introduced his “McConnell Amendment” to health care bills. This amendment proposed that Congress federally take over all 50 state tort systems, all for the purpose of severely limiting the rights of injured patients and nursing home victims to hold facilities, drug companies, hospitals and HMOs accountable in court.

His proposal to replace Obamacare was “tort reform.” His response to the COIVD pandemic was “tort reform.” In fact, in 2020, he blocked COVID relief legislation by insisting on broad and long-lasting corporate immunity provisions (as we covered somewhat humorously last July). Luckily, all of these failed.

So when Sen. McConnell said last week, “He didn’t get away with anything, yet. … We have civil litigation,” was he being ironic or just hypocritical?  And will he support the range of cases that are now being brought, including one just filed by House members for compensatory and punitive damages over violations of the 1871 Ku Klux Klan Act? 

Hope so. But I’m not holding my breath.

Medicine’s Dark Side

You might think we are a bit tone-deaf to do this post today, threats to the Republic and all. But it is still important to note some under-the-radar issues that will be with us well past January 20 and even beyond COVID-19. So here’s what we want to tell you: some of the bosses and political patrons of corporate medicine are creating such misery for people that the Hippocratic oath “First Do No Harm” seems to be in clear violation at the moment. And I don’t know who’s supposed to be enforcing that, but at least we can talk about it.

Let’s start with a couple shocking COVID related stories this week that you may have missed.

First comes this story from the New York Times about close Cuomo ally Northwell Health, run by Northwell’s ethically-challenged Michael Dowling. (Not our first rodeo with Mr. Dowling, BTW.). Northwell is New York’s largest health system. Even though the Governor told state-run hospitals to stop suing patients over unpaid medical bills, Northwell ignored this directive and has launched a “flood of litigation” against patients during the pandemic, more than 2,500 last year.

The Northwell lawsuits each sought an average of $1,700 in unpaid bills, plus large interest payments. They hit teachers, construction workers, grocery store employees and others, including some who had lost work in the pandemic or gotten sick themselves.

And as they were running around suing their own patients, Northwell and New York’s other major hospitals systems lobbied for immunity laws in New York (and in Congress) so that patients severely harmed by negligent hospitals or killed by bad nursing homes would have no remedy and could never hold anyone accountable in court.

Speaking of negligent nursing homes, here’s some chutzpah for you. Pennsylvania nursing home operator Comprehensive Healthcare Management Services is trying to hide behind the COVID-19 federal declaration of emergency, meant to deal with actual emergencies like vaccine production, to infect and kill its patients with impunity. This is even though courts have already said they can’t do that, and their facilities’ staffing and infection control problems existed well-before COVID.

Which brings us to our next topic, forced arbitration. When it comes to medical care, turns out this is not just a problem with nursing homes. As Bloomberg reported last week, more and more doctors are forcing patients to sign these anti-patient clauses in order to get medical care, guaranteeing that if they or their child are victims of negligence no matter how egregious, they must resolve their cases in rigged, secretive systems and cannot hold the culpable health care provider accountable in court.  

This is due to a new trend, which COVID-19 is accelerating - doctors themselves are being told they cannot provide care without patients signing these horrendous clauses. The requirement is coming from out-of-state private equity firms that now buying up physician offices and surgery centers. Says Bloomberg,

Over the past decade, almost 4,000 independent clinicians in women’s health have come under private equity ownership, according to a study published in August in the Journal of the American Medical Association. The figure is likely much higher, according to the study’s authors, but the deals aren’t uniformly disclosed.

And as the story also describes, these clauses are being forced on patients even though state Supreme Courts have prohibited use of them.

Oh, make sure to give the insurance industry proper blame for this trend too. As Bloomberg reports, “[t]he insurance industry has encouraged this trend by offering better terms to physician groups that can get their patients to preemptively waive their right to a jury trial.”

And finally, CBS just did a couple great pieces (here, here) about the failure of state medical boards to oversee and sanction even the most incompetent physicians with records of medical malpractice. As CBS points out, it is no secret that a small number of doctors are responsible for most malpractice. If medical boards simply did their job and weeded them out of the system, deaths, injuries, claims and lawsuits would all drop. Instead, the medical industry is relentlessly focused on stripping victims of their legal rights.

Stupid is as stupid does.

New York Hospitals Doing Harm

It’s hard to reconcile. Doctors live by an oath so well-known that we can all recite it: “first, do no harm.” Their work through the worst of the pandemic in New York was utterly heroic. Yet when it comes to the activities of leaders and lobbyists who represent the institutions they work for, the opposite is true.

The Greater New York Hospital Association (GNYHA) has historically been one of the most powerful and insidious anti-patient “tort reform” groups in New York State. Run by Ken Raske, GNYHA wastes an enormous amount of its budget on lobbying, politics and PR efforts, offending nearly everyone except – ironically - those who do harm. It is the single largest “hospital and nursing home” contributor to federal candidates in the country, far surpassing any other donor. It’s hold over Governor Andrew Cuomo is legendary, dating back to Cuomo’s first few months in office nearly a decade ago. (More about that here, here, here.)    

It may be no surprise that Raske was behind New York’s broad immunity legislation, snuck into law as part of Cuomo’s budget in the early days of the pandemic. Fortunately, lawmakers finally woke up to this troubling law and recently rolled it back. However, taking no hint whatsoever from their own state, which decided that broad immunity was harmful and immoral, GNYHA has now moved on to the entire country. In fact, it seems that Senate Majority Leader Mitch McConnell specifically invited them to add its revolting agenda to McConnell's national corporate immunity bill. Raske’s fingerprints are apparently all over it. 

Yet let there be no mistake. If New York’s bill was cruel, this national bill is utterly depraved. For example, in the federal bill, any patient suing for malpractice – including in non-emergency situations – must prove misconduct so extreme as to resemble the crime of reckless homicide. Even if a patient wins, they have no right to non-economic damages at all.  And there’s more, ensuring that even the most obvious case of medical malpractice won’t go forward for the next five years.

Helping Raske in DC is Albert Pirro.  According to recent reporting,

McConnell’s new legislation reflects the Trump administration’s push for a liability shield at the same time that GNYHA has hired Trump’s former lawyer and prolific GOP fundraiser Albert Pirro Jr. as a Washington lobbyist. 

Pirro is a long-time personal friend of the president — their relationship began 30 years ago when Trump hired him as a real estate attorney. He is the ex-husband of Fox News’ Judge Jeanine Pirro and was once sentenced to 29 months in federal prison for tax offenses....

Pirro has only been filing disclosures as a Washington lobbyist since 2017, when Trump became president. GNYHA — which is one of only three Pirro lobbying clients in Washington — has paid Pirro’s firm nearly $2.3 million since hiring him in 2017. 

So, somehow GNYHA found $2.3 to pay a lobbyist, while at the same time pushing legislation to eliminate all non-economic compensation to every child catastrophically-injured by medical malpractice, anywhere in the nation.

Anyone know how to reach Hippocrates?

Medical Malpractice Insurance Magical Mystery Lore

Confused mixed messaging should be America’s top motto as we try to live (emphasis on that word) through a lethal pandemic. Trump pushed drugs that are harmful to COVID patients, according to his own FDA. Politicians in states now seeing terrible virus surges, like Texas, are refusing to tell people to wear masks even though mayors are begging for this - since masks clearly work. But confusion reigns. Just check out a recent The View, when all hell broke loose over discussion about the safety differences between indoor and outdoor events.

With this in mind, welcome to the latest edition of the Medical Liability Monitor (MML), a $500/year medical malpractice insurance trade publication. In service of pushing the agenda of insurers while at the same time negating it, this is confused mixed messaging at its best.

The agenda, to put it simply, is to price gouge doctors with unnecessary rate hikes and blame patients who are negligently injured and go to court. Before the pandemic hit, the industry was already talking about hitting doctors with premium hikes and blaming lawsuits for this, even though there had been no jump in claims, no trends at all in that direction, and huge industry profits. (See this report.)

Now that we are a few months into a global pandemic, most of us have adjusted to entirely different realities. For example, almost no one other than COVID-19 patients have been interacting with the health care system. And the legal rights of COVID patients who were negligently treated have been eliminated by “emergency” legislation or executive order in half the states.

If you read some of the nonsense coming out of the insurance industry, however, you might never know that. For example, the headline story in MML’s June 2020 issue, "A.M. Best Maintains Negative Outlook On MPL Segment For 2020, COVID-19 Outbreak Exacerbating Challenges For Insurers," is basically a list of greatest hit complaints about “deterioration in underwriting results” and “dim prospects for the segment's profitability” due to things like the “surge of litigation” from the pandemic. 

But keep reading. As to that litigation surge, they also write: “As of May 7, 2020, eight COVID-19-related medical malpractice lawsuits have been filed across the U.S., and more are likely to follow.” Eight. And no they are not. There are almost no COVID-related medical malpractice cases according to those tracking this. 

And then there are other articles to note in that same MML edition. Here is one called, “Almost 55% Fewer Americans Sought Hospital Care In March-April, Driving A Clinical And Financial Crisis In U.S. Healthcare,” with MML reporting:

The analysis reveals that, across all service lines, and in every region of the country, there was an average 54.5% decrease in the number of unique patients who sought care in a hospital setting. The sharp drop in encounters is linked to the cancellation of elective surgeries during this time period.

Surgeries are an interesting benchmark. There are about 400,000 preventable surgical errors each year in the United States, no doubt some of which lead to insurance claims. But as MML reports, due to COVID,

[T]here were significant declines in the number of hip (79% drop) and knee (99% drop) replacement surgeries as well as in spinal fusions (81% drop) and repair of fractures (38% drop). Coronary stents (44%drop) and diagnostic catheterization (65% drop) also saw significant declines. Overall diagnostic volume declined by 60%.

No procedures, no preventable errors, no insurance claims. Some state insurance departments have figured that out, as MML also wrote this article: “New Jersey Demands Premium Refunds, California Expands Its Refund Order.” They report:

New Jersey Department of Banking & Insurance last month issued Bulletin No. 20-22, which orders the state's insurance companies to make a partial premium refund or other adjustment for certain specified lines of insurance that have experienced a reduction in loss exposure due to the COVID-19 pandemic [including medical malpractice insurance].

Similarly in California, Commissioner Ricardo Lara is “requiring insurance companies to return partial insurance premiums to consumers and businesses amid the ongoing COVID-19 pandemic” including medical malpractice premiums.

So thanks MML. You’ve certainly help clear all this up!

Immunity Madness

Frontline health care workers - our indefatigable, exhusted, terrified, sick and dying heroes - are dealing with a mind-boggling number of crises that are making their lives hell, all of which could have been prevented or at least minimized had the federal government not wasted months. 

Between trying to solve multiple health care crises and dealing with an economic collapse, lawmakers have more than enough to do right now without being burdened with lobbyist demands over pretend problems.

Here’s a pretend problem: COVID-19 patients suing front line workers for medical malpractice. No one’s doing that. Yet you would never know it by reading the overly anxious recent letter to Congress from the “Health Care Coalition on Liability and Access,” a coalition of medical and insurance lobbies whose entire agenda is to push laws that strip patients of legal rights. They claim that the “threat” of medical malpractice lawsuits “remains hanging over their heads like a sword of Damocles.” Really? Watch last night's 60 Minutes about how U.S. doctors and nurses are "risking their lives without the same protective gear many of their counterparts around the world have," and tell me that lawsuits are the problem. In fact, what a preposterous thing to say about any sick and dying COVID-19 patient - far too many of whom are frontline health care workers themselves! 

Even in normal times, almost no one sues for medical malpractice even though they have a legitimate case. (See plenty of studies supporting this fact in the Center for Justice & Democracy’s medical malpractice briefing book.) But now, in the midst of a pandemic caused by a virus with no medical cure, exacerbated by equipment shortages that the health care system did not create, this whole issue is a red herring. As any lawyer who practices in this field will tell you, the standard of care, and what the law reasonably expects of health care professionals in an emergency, is very different than normal times.

Some might say “well, if there aren’t any lawsuits against frontline workers, what’s the harm in immunizing them”? Perhaps there isn’t. But let’s be clear what a law like this means. First, it means Congress would be asking sick and dying patients to give up Constitutionally-protected rights. Taking away Constitutional rights should never been done lightly even in an emergency. Perhaps especially in an emergency. And it’s not just sick patients asked to sacrifice here. States would also be relinquishing authority to decide how to handle this in their state – a mess of a situation that the federal government has otherwise chosen to largely dump on them. Just a wild guess, but of all the many things states need help with right now, preempting their tort law isn't on the list.

Second, the concern about overreach is real. Take a look at some COVID-related state immunity statutes that have already quickly passed, seemingly without a second thought. Some of these laws go far beyond protecting front line health care workers. For example, New York’s law, as well some laws in other states like Illinois, immunizes nursing homes. Some of these homes are run by negligent for-profit chains. Elderly nursing home residents are probably the single most vulnerable population in a state, virtual sitting ducks for this virus. 

Yet these residents, who depend on nursing home competence for their literal survival, are now suffering terribly in this pandemic. Clearly, negligent corporate owners should be on the hook for lethal, preventable failures, as described in this Washington State case against Tennessee-based Life Care Centers of America Inc., “among the largest players in U.S. nursing home care, with more than 200 senior-living centers in 28 states.”

In this case, “Debbie de los Angeles, whose mother Twilla Morin, 85, died on March 4 at the Life Care Center in Kirkland, Washington of COVID-19” is suing because “the company concealed vital facts about the outbreak before her mother died.” Her attorney says, “his client strongly suspects the company knew more about a potential coronavirus outbreak” before it admitted to it. “My client filed a lawsuit to demand answers to important questions,” he said.

Perhaps not surprisingly, in Florida, a state with one of the largest age 65+ populations in the country, the nursing home industry is begging for immunity in a letter sent to Governor “Let-‘Em-Party” DeSantis last month. 

Brian Lee, executive director of Families For Better Care, a non-profit group advocating for nursing home residents, said the letter was the equivalent of "asking for forgiveness in advance."

"It just got my blood boiling. I was shocked by the temerity of the industry to ask for blanket immunity from lawsuits… and to do it during the middle of this crisis. It’s appalling, and it’s a total slap in the face of families," Lee said. "All of their focus should be on saving our families lives, but it shows that, at the end of the day, they care more about their own protections. It's gross."…

A recent USA TODAY analysis of federal inspection data found that a majority of U.S. nursing homes (75%) have been cited for failing to properly monitor and control infections in the last three years – a higher proportion than previously known.

Compared to virtually any other population in America, nursing home residents are the most fragile and at-risk for COVID-19. Whether it’s Congress or the states, the very last thing we should be doing is removing the nursing home industry’s financial incentive to maintain safety for these residents. And when it comes to other kinds of immunity requests, remember that health care and insurance industry lobbyists don’t always tell the truth. If nothing else, we should be able to agree on that.