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The Reality of the High Cost of Defensive Medicine

Ben Glass — Sun, 13 Sep 2009 07:16:26 GMT

As the debate ramps up regarding health care reform/insurance reform, one of the subjects that is brought up more and more often is the notion that we need to change the medical malpractice laws, on a national level. Conservatives argue for it and even the President, in a recent address, suggested that aspects of tort reform were on the table in order to fight the high cost of medical care.

The Argument that Defensive Medicine Exists to Protect from Lawsuits

Supporters of malpractice reform argue for limiting the right to sue a doctor, nurse or hospital, either by imposing additional legal roadblocks (expert certification before suit, for example) or by creating artificial limits to monetary recovery, usually by capping compensation for pain and suffering. According to their argument in favor of reform of patient’s rights, health care providers routinely order extra, non-necessary tests, not because it is reasonable to do so but to prevent the physician from being sued later for “not performing every test.” There is a huge cost to society, the argument goes, to all of these extra medical tests being ordered. "The country could lower its cost of medicine,” proponents argue, if health care providers weren’t so afraid of being sued, and thus, didn’t have to order all of these unnecessary tests.

It sounds like a pretty argument when spoken, in part because it is so hard to come up with facts to argue against it. It almost sounds logical. But, in fact, whenever the argument made it is always begins this way: “the estimated cost of defensive medicine is….”

Why is It That They Always Talk About the Estimated Costs of Defensive Medicine?

I suggest that when someone makes an argument that tort reform is necessary to prevent the “huge expense” of so-called defensive medicine” that that we don't let them get away with the "soft facts" they tend to use. Because the practice of defensive medicine is contrary to existing, well-established practice and law, the burden should be on the proponents of the existence of “defensive medicine” to prove that it even exists.

ByLaw, All Doctors are Required to Practice According to the Standard of Care

First, medical malpractice law does not require perfection. The law only requires that a doctor practice in accord with the “standard of care.” The “standard of care” is simply that care that would be required by a “reasonably prudent health care provider acting in the same or similar circumstances.” It is that care that a consensus of “reasonably prudent doctors” would have engaged in with the information they had at the time the decision for care occurred. When a doctor does or fails to do something required by the standard of care, then he or she is negligent.

If harm results from that negligence, then he or she is responsible to the patient for that harm.

A Doctor is Required to Talk to the Patient About Risks and Benefits

By law, doctors and patients act as a team. The doctor does an assessment of the situation, takes into account the information reasonably available at the time, maked a working diagnosis and recommends a course of action. The standard of care requires that a doctor explain to the patient both the risks and the benefits of the proposed course of treatment. This is the law of "informed consent." Ultimately, it is the patient, being fully advised, who
makes the decision as to the course of treatment.

Listen Very Carefully When They Talk About the Cost of Defensive Medicine

Those who argue that defensive medicine drives up the cost of health care in America define the practice as a medical test or procedure that is ordered that has no reasonable basis for giving the physician-patient team information that would be useful to the decision making process of the patient-doctor team. It is ordered, they say, simply to protect the doctor.
In order to believe that there is a true, measureable, cost of so-called defensive medicine, one would first have to ask: how do we know it is actually happening? Those that are “reporting” that they engage in “defensive medicine” are the doctors who have a vested interest in the argument or their medical associations or lobbyists. They “report” practicing defensive medicine but how should a rational person actually measure this or test the assertion?

Are These Doctors Admitting That They Are Violating the Standard of Care?

Think about it. Anyone who says he or she routinely engages in defensive medicine is admitting that they practice outside the standard of care. They admit that they routinely engage in conduct that is, by definition in every state, medical malpractice. Indeed, they are admitting that in their discussion with the patient about the next step to take in their health care, they are lying when they disclose the risks and benefits of the proposed treatment.This is astonishing.

Are They Also Admitting to Insurance Fraud?

Second, any doctor who admits they engage in the practice of “defensive medicine” is saying they are engaging in outright insurance fraud. A health insurance company is generally bound by contract or plan language to pay only those claims that are reasonable and necessary to treat illness or injury. The practice of “defensive medicine” is, by definition, an admission that two people are being lied to and victimized by fraud: the patient and the insurance company. (Either that or the patient and doctor are conspiring to defraud the insurance company.)

Show Us the Records

The only objective, rational way to know whether “defensive medicine” is being practiced is to look at a patient’s actual medical records and have that care reviewed by other “reasonably prudent physicians.” This is never done by tort reform proponents. A doctor who says “I practice defensive medicine (i.e. I lie to the patients and defraud the insurance company) never says “and here are my records to prove it.” How could they? They would go to prison.

The next time you hear any doctor assert that he or she engages in the fraudulent, improper practice of “defensive medicine” ask him or her if they will produce the actual medical records (patient identifiers removed) to prove the claim. Have them tell us that they had a face to face conversation with the patient (as is required under the standard of care) and told the patient “the test I want to order has no reasonable value to the decision-making process in your care.”

It simply doesn’t happen.

Every Patient Needs to Take Responsibility for Their Own Care and Ask This Question

I suggest that in truth, there is very, very little so-called “defensive medicine” actually practiced in the United States. When sent off for testing a patient should always ask and demand an answer for this question: “doctor, what is the scientific and medical basis for this test? What are the odds that something important will be missed if I don’t have this test?”

Originally posted at InjuryBoard by Ben Glass

Josh Hancock lawsuit against bar would not fly in Virginia

Ben Glass — Tue, 29 May 2007 17:50:32 GMT

Apparently the father of Josh Hancock, the baseball player who died recently while driving drunk (and not wearing a seatbelt and talking on the cell phone) has filed suit against a number of entities, including the driver of the car that had stalled on the road, the pickup truck that had stopped to assist that car and the bar where Hancock spent several hours allegedly drinking. I don't know what Missouri law is on the subject but that case wouldn't make it out of the gate here in Virginia.

Here, if you are in any way, even one percent, responsible for your own mishap, you lose. In Virginia, even if the bar served him and he went out and killed someone else, that other person's family wouldn't win against the bar.

Not to minimize his death.. .his death is tragic...this lawsuit is silly.

Maybe his father's time would be better spent telling his son's story to a whole bunch of high school kids.

Originally posted at InjuryBoard by Ben Glass

More on the $67,000,000 Dollar Pants Case

Ben Glass — Wed, 02 May 2007 08:43:32 GMT

I know many are probably starting to read about the crazy lawyer (a judge, no less) who is suing a dry cleaners here in Washington, D.C. I've blogged about it (as have others) and it's starting to pick up some national momentum.

Just wanted everyone to know that on the various lawyer listserves this guy is receiving universal condemnation! Since he is suing pro se, he's actually a good example of how lawyers protect the system because no legitimate lawyer would have taken his case. (Maybe the reason he is pro se is that no one WOULD take his case.

Here's one thought: Maybe he's someone who is doing this IN ORDER TO PURPOSELY ATTEMPT TO HARM THE COURT SYSTEM. In other words, he's doing this (and he continues, even though he's getting all negative publicity) with the specific intent of making it harder for legitimate claimants to have their day in court.

A stealth plaintiff? Just a thought.

Originally posted at InjuryBoard by Ben Glass

No More "Runners" In Washington, D.C.

Ben Glass — Thu, 03 Aug 2006 09:01:42 GMT

No, no, I'm not talking about the heat wave here and how no one is out jogging. I'm talking about the refreshing law change that will permit unscrupulous lawyers and chiropractors from obtaining accident reports and calling and visiting car accident victims shortly after an accident to solicit cases/patients. While technically an amendment to the D.C. Theft and White Collar Crimes Act, I like to call the new law the Protect Washington, D.C. Car Accident Victims From Harrassment by Lawyers and Chiropractors Act.

Here's the deal. D.C. is, until next week, practically the only place in the United States where a lawyer could pay a "runner" to buy yesteday's accident reports from the police and then make a person to person visit to solicit the work. Actually it's even worse. Talking to a potential client yesterday (who lives in Virginia but was injured in a Washington, D.C. car accident. the very next morning after his accident (a minor fender bender) there was a guy on his front doorstep trying to get him to sign up with a lawyer and for physical therapy! Not only did it turn this client off of this lawyer but it sure sent a message to him about all lawyers.

Next week, this will be illegal. You can read the entire text of the new D.C. "Anti-Runner" Legislation here.

Originally posted at InjuryBoard by Ben Glass

Senate Finally Questioning Dubious Disability Insurance Practice

Ben Glass — Fri, 25 Jul 2008 06:24:49 GMT

Its about time that someone investigated this practice of the major disability insurance companies:

Because their group policies allow them to reduce their payments to claimants if the claimant gets social security disability payments they often require claimants to apply for social security disability even though they know darn well that they won't qualify.

Most long-term disability policies protect you and provide payments if you can't work at your occupation...but you don't need to be so disabled that you would qualify for benefits, yet UNUM and the other "majors" often require claimants to go through the process, even to the point of forcing claimants to appeal initial SSDI denials.

This is extremely wasteful of government resources and is probably part of the reason why there is a huge back up of claims-processing for social security claims

The New York Times has this story this morning.

My book, Robbery Without a Gun, exposes other deceptive practices of the disability insurance companies.

Originally posted at InjuryBoard by Ben Glass

Consumer Alert--Tread Cautiously With the Lawyer Directory Websites

Ben Glass — Wed, 25 Jun 2008 22:21:28 GMT

An email sent today to lawyers across the country should cause consumers use extreme due-diligence when searching for a lawyer on the Internet.

DUI1.com, a very popular and highly ranked (in Google) website solicits people who have been charged with drinking while driving and who are looking for a lawyer to defend them.

Their site says:

If you're charged with a Driving While Intoxicated offense, it's possible to have your charges dismissed with the assistance of a skilled DWI legal counselor. You must act NOW! Click on a state and then county or city to locate a fully qualified drunk driving defender or use our easy search to locate a defender via county, city or zip code.

But, in an email sent to thousands of lawyers across the United States today, they solicited lawyers to sign up to be one of their fully qualified drunk driving defenders.

Know what their stated qualifications were to let a lawyer represent you?

Here's the text:

Do Your Know How to Plead a Client Guilty? If Yes, You Are a Qualified DUI Lawyer. DUI1.com will run TV ads nationally this 4th of July weekend and all 6 major US holidays. You can see the ad here or visit the following link: http://www.youtube.com/watch?v=vpFK4wWgkxY . While we are the Number 1 result on Google for DUI related term, we remain committed to increasing our member's case loads and set a new standard in DUI Defense. Over 99% of DUI cases are pled before going to trial. This makes DUI Defense one of the most lucrative areas of the criminal defense practice. At DUI Defenders we remain committed to producing results for our members.

(The actual full email is here....read it if you don't believe me.)

Ok, so they can run a business and get lawyers to pay fees to be a member of their website. The teaching point for consumers is that you better look a little closer than the fancy copy on the website! For example, Richmond, Virginia attorney Bob Battle has written a book for DUI defendants in Virginia that explains just what questions you need to ask your lawyer. DUIAnswer.com, another lawyer directory, offers free books that explain the process and the questions you should be asking.

I've written a book for consumers, the Truth About Lawyer Advertising. Its available at Amazon.com

Originally posted at InjuryBoard by Ben Glass

Virginia Doctor Injured After Being Chased on Bike by Dog

Ben Glass — Mon, 07 Jul 2008 15:15:00 GMT

On June 23, a 59-year-old Fairfax physician sustained serious personal injuries after a dog chased after his bicycle and attempted to grab the back wheel. The man was caused to be launched over the handlebars of his bike and land on his face when he attempted to kick the dog away with his right leg, according to Washington County Deputy Erik Hinchey.

Hinchey said that police have not named the man due to difficulties locating his children. Because of the incident, the man sustained two broken eye sockets, a broken nose, and cranial bleeding. He was placed in intensive care at Bristol Regional Medical Center and Hinchey says possible brain damage is a concern.

The physician and his wife traveled to Bristol in order to join over 1,800 cyclists who participated in Bike Virginia , a week long bike tour which draws cyclists from all across the country for a yearly biking vacation.

Hinchey says that the owner of the German shepherd-mix which chased the physician was cited for having an unleashed dog. She is due in court in August and will face fines of up to $375. The owner may also face civil liability if leash laws were violated.

Originally posted at InjuryBoard by Ben Glass

Sorry, another stupid lawsuit

Ben Glass — Sun, 12 Aug 2007 05:23:27 GMT

Seems a Houston man used 1-800 Flowers to send his love interest flowers and a card. Problem was, it wasn't his wife. So, to be careful, Leroy Greer told the flower delivery company to not send him a receipt. They didn't.

But they did send a thank you card to his home later.

Guess what happened next?

Yes. His wife, curious, calls the flower company and gets receipt faxed over. Then she files for divorce. Now he's suing 1-800 Flowers for 'breach of contract."

Give me a break. That's like telling a co-hort in crime "hey, if the police asks, say it wasn't us."

People do need to take personal responsibility for their actions. Yes, technically, 1-800 Flowers did 'breach' their agreement to not let his wife know about his affair...but the whole thing starts with his dishonesty with his wife.

This is not a reason to take up the federal court's time and hopefully, a judge or jury will see it that way as well. Hie is represented by Houston attorney Kennitra Foote.

Originally posted at InjuryBoard by Ben Glass

Virginia drivers beware: New law places hefty fines on bad drivers

Ben Glass — Wed, 27 Jun 2007 08:58:28 GMT

You'll want to think twice about speeding. A new Virginia law places hefty fines on bad drivers. On top of criminal fines and court costs, those who break the law will also have to pay civil fines of $300 to $1,000. (Note that these new fines only apply to Virginia citizens. So if you are from another state and get caught speeding, you only get the 'regular fines.")

Blowing through a stop light, passing a school bus while it's stopped, and driving over 80 miles per hour on any road are all against the law. Starting Sunday you'll pay dearly for doing so. They're called abuser fees. They were included in the legislature's transportation bill to raise money for new roads and rail.

Right now if you fail to turn without giving a signal, a judge can fine you up to $2,500, with a $50 court cost. The abuser fees for that crime are three payments of $350. That $1,050 does not include a criminal fine.

There's lots of people making list of the Virginia legislators who voted for this one. Apparently, it is one of those new laws that snuck through the Virginia General Assembly while folks weren't paying attention. (Then again, the bad drivers of Virginia don't have a strong lobbying group."

And, there's a huge problem for "problem drivers, " according to a press release

The new law also has strict punishments for repeat problem drivers. People who have driving records with eight or more demerit points will be charged an additional $100 upon a new conviction, plus $75 for each demerit point in addition to eight. The fees based on demerit points will not exceed $700 and the $75 per point fee only applies to demerit points earned after July 1.

Attorney Dave Albo (one of architects of the plan to assess the fees, which will eventually raise $65 million a year for transportation projects) is both a Virginia Delegate and an attorney who will represent people charged with driving offenses. Here's a very interesting blog dedicated to Mr. Albo. He was quoted as saying:

"I've had people from all around the state calling and yelling at me."

Originally posted at InjuryBoard by Ben Glass

Disciplinary investigation into $65,000,000 dry cleaner lawsuit?

Ben Glass — Wed, 09 May 2007 13:29:23 GMT

Jon Haber, CEO of the American Association for Justice has written a letter to the District of Columbia Bar, asking that it open an investigation into Judge Roy Pearson, for his pursuit of the $65,000,000 dry cleaner lawsuit.

We have previously commented on this lawsuit and posted some of actual pleadings.

Jon Haber letter to District of Columbia Bar Association

May 8, 2007
Mr. James Sandman
President
District of Columbia Bar Association
1250 H St. NW, Sixth Floor
Washington DC 20005
Dear Mr. Sandman:
As a member of the District of Columbia Bar, I believe that the widely reported actions of Mr. Roy Pearson, Jr. in pursuing a $65 million dollar lawsuit against a local dry cleaning business appear to constitute a serious abuse of the civil justice system and warrant a disciplinary inquiry from the Bar.

Media reports indicate that Mr. Pearson, an administrative law judge and member of the District of Columbia Bar has relentlessly pursued his lawsuit against Custom Cleaners, a family-owned dry cleaner, for temporarily misplacing a pair of his suit pants. Despite an apparently generous settlement offer that includes the return of the once-missing suit pants, news reports indicate that Mr. Pearson has maintained his action over a two-year period, filed thousands of pages in documents and made damage claims that appear to be farfetched and unjustified. Moreover, it appears that Mr. Pearson's actions in this matter are consistent with his behavior in prior legal disputes, where he has followed courses of action both that appear both vexatious and disproportionate to any legitimate claim.

The American civil justice system ought to be a point of pride, both to the public and the profession. It enables those who, in good faith, believe that they have been wronged to pursue justice and have an impartial tribunal resolve responsibility. Only in such a courtroom can everyone - regardless of wealth, connections or political clout - stand on a level playing field of justice.

Our court system has no place for those who abuse the instruments of justice for personal gain or the intimidation of others, rather than just compensation. That Mr. Pearson occupies a position of public trust as an administrative law judge, in addition to his membership in the Bar, further intensifies the dishonor that his apparent actions have cast on both the system and the profession. As attorneys, we have a special obligation to preserve the integrity of our civil justice system.

Our commitment must be to strengthening the civil justice system so that deserving individuals can get justice, wrongdoers are held accountable, and efforts to weaken basic legal protections are repelled.

For actions inconsistent with the oath and office of our learned profession, I urge that the District of Columbia Bar investigate this matter and take appropriate disciplinary action.
Sincerely,

Jon Haber
Chief Executive Officer, American Association for Justice

Originally posted at InjuryBoard by Ben Glass