Med Mal News

Court Finds Doctors'  Group Has Standing to Sue State Medical Board

A suit against the Texas Medical Board (TMB) will be allowed to proceed now that the U.S. Court of Appeals for the Fifth Circuit has held that a physicians' group has standing to sue on behalf of its members. The doctors' group, the Association of American Physicians & Surgeons Inc. (AAPS), has accused the TMB of using anonymous complaints and retaliatory actions against physicians in violation of their constitutional rights. The TMB's actions, the group claims, have harmed physicians' reputations and livelihoods while at the same time making them fearful of lodging complaints against the system for fear of retaliation. For example, the plaintiff claims that a New York insurance company, seeking to avoid paying a claim, was permitted to make harmful anonymous complaints against a physician. The suit was dismissed for lack of standing in the District Court, but the Fifth Circuit reversed in Association of American Physicians & Surgeons Inc. v. Texas Medical Board (TMB), stating, “AAPS's complaint alleged, among other things, abuses perpetrated on physicians by means of anonymous complaints, harassment of doctors who complained about the Board, and conflicts of interest by decision-makers. If practiced systematically, such abuses may have violated or chilled AAPS members' constitutional rights.” Other circuits are split on the question of whether to grant “associational standing” in cases like these, with some saying individuals must bring their own suits. Advocates for the approach adopted by the Fifth Circuit contend that individuals are in no position to press their own claims against medical boards, as they face long delays in their cases and place themselves in danger of retaliatory actions by their medical boards when they protest what they see as unfair treatment.

Study Documents Surgeons' Practice of Defensive
Medicine

At the annual meeting of the American Academy of Orthopaedic Surgeons, a researcher reported that doctors order Magnetic Resonance Imaging (MRI) tests for their patients far more often than is necessary, driving up the costs of medical care for insurers, government entities and patients. In most cases, the doctors ordering the unneeded tests did so out of fear that they would be accused of under-treating their patients, which could lead to allegations of medical malpractice. The study was conducted in Pennsylvania, with 72 orthopedic surgeons voluntarily (and anonymously) participating. The surgeons were asked to record their imaging decisions; more than 2,000 such orders were recorded. Nineteen percent of these were medically unnecessary, and were ordered merely to head off charges of medical malpractice. The authors of the study, titled “The Prevalence of Defensive Orthopaedic Imaging: A Prospective Practice Audit in Pennsylvania,” are John M. Flynn, M.D., Robert A. Miller, BS, and Norma Rendon.

To Achieve Health Care Cost Reductions, President Touts Med-Mal Reform

In his January State of the Union address, President Barack Obama once more signaled his willingness to consider changes to the medical malpractice system as a means to reduce health-care costs. (See Bernard article in this issue.) “Health insurance reform will slow [health care's] rising costs, which is part of why nonpartisan economists have said that repealing the health care law would add a quarter of a trillion dollars to our deficit,” said Obama. “Still, I'm willing to look at other ideas to bring down costs, including one that Republicans suggested last year: medical malpractice reform to rein in frivolous lawsuits.”

Congressman Phil Gingery (R -GA) recently introduced just such a bill, known as the “Help Efficient, Accessible, Low Cost, Timely Health Care (HEALTH) Act of 2011″ (H.R. '5). Prominent among its features is a $250,000 limitation on non-economic damages for medical malpractice injuries. The limitation would apply to all possible sources of liability; plaintiffs could not, for example, recover $250,000 from a surgeon and another $250,000 from the hospital at which the surgery was performed. It would do away with joint liability; if 25% of an injury could be attributed to a surgeon and 75% to a hospital, the hospital could be required to pay only 75% of the total damages, even if the surgeon was judgment proof. The law would prohibit courts from telling jurors about the limit on non-economic damages, would limit the percentage of damages payable as attorney compensation, and would impose nationwide limits on the time in which plaintiffs could bring claims. The provisions of the HEALTH Act, if passed in its current form, would apply equally to judgments, settlements and all forms of alternative dispute resolution.

Court Finds Doctors'  Group Has Standing to Sue State Medical Board

A suit against the Texas Medical Board (TMB) will be allowed to proceed now that the U.S. Court of Appeals for the Fifth Circuit has held that a physicians' group has standing to sue on behalf of its members. The doctors' group, the Association of American Physicians & Surgeons Inc. (AAPS), has accused the TMB of using anonymous complaints and retaliatory actions against physicians in violation of their constitutional rights. The TMB's actions, the group claims, have harmed physicians' reputations and livelihoods while at the same time making them fearful of lodging complaints against the system for fear of retaliation. For example, the plaintiff claims that a New York insurance company, seeking to avoid paying a claim, was permitted to make harmful anonymous complaints against a physician. The suit was dismissed for lack of standing in the District Court, but the Fifth Circuit reversed in Association of American Physicians & Surgeons Inc. v. Texas Medical Board (TMB), stating, “AAPS's complaint alleged, among other things, abuses perpetrated on physicians by means of anonymous complaints, harassment of doctors who complained about the Board, and conflicts of interest by decision-makers. If practiced systematically, such abuses may have violated or chilled AAPS members' constitutional rights.” Other circuits are split on the question of whether to grant “associational standing” in cases like these, with some saying individuals must bring their own suits. Advocates for the approach adopted by the Fifth Circuit contend that individuals are in no position to press their own claims against medical boards, as they face long delays in their cases and place themselves in danger of retaliatory actions by their medical boards when they protest what they see as unfair treatment.

Study Documents Surgeons' Practice of Defensive
Medicine

At the annual meeting of the American Academy of Orthopaedic Surgeons, a researcher reported that doctors order Magnetic Resonance Imaging (MRI) tests for their patients far more often than is necessary, driving up the costs of medical care for insurers, government entities and patients. In most cases, the doctors ordering the unneeded tests did so out of fear that they would be accused of under-treating their patients, which could lead to allegations of medical malpractice. The study was conducted in Pennsylvania, with 72 orthopedic surgeons voluntarily (and anonymously) participating. The surgeons were asked to record their imaging decisions; more than 2,000 such orders were recorded. Nineteen percent of these were medically unnecessary, and were ordered merely to head off charges of medical malpractice. The authors of the study, titled “The Prevalence of Defensive Orthopaedic Imaging: A Prospective Practice Audit in Pennsylvania,” are John M. Flynn, M.D., Robert A. Miller, BS, and Norma Rendon.

To Achieve Health Care Cost Reductions, President Touts Med-Mal Reform

In his January State of the Union address, President Barack Obama once more signaled his willingness to consider changes to the medical malpractice system as a means to reduce health-care costs. (See Bernard article in this issue.) “Health insurance reform will slow [health care's] rising costs, which is part of why nonpartisan economists have said that repealing the health care law would add a quarter of a trillion dollars to our deficit,” said Obama. “Still, I'm willing to look at other ideas to bring down costs, including one that Republicans suggested last year: medical malpractice reform to rein in frivolous lawsuits.”

Congressman Phil Gingery (R -GA) recently introduced just such a bill, known as the “Help Efficient, Accessible, Low Cost, Timely Health Care (HEALTH) Act of 2011″ (H.R. '5). Prominent among its features is a $250,000 limitation on non-economic damages for medical malpractice injuries. The limitation would apply to all possible sources of liability; plaintiffs could not, for example, recover $250,000 from a surgeon and another $250,000 from the hospital at which the surgery was performed. It would do away with joint liability; if 25% of an injury could be attributed to a surgeon and 75% to a hospital, the hospital could be required to pay only 75% of the total damages, even if the surgeon was judgment proof. The law would prohibit courts from telling jurors about the limit on non-economic damages, would limit the percentage of damages payable as attorney compensation, and would impose nationwide limits on the time in which plaintiffs could bring claims. The provisions of the HEALTH Act, if passed in its current form, would apply equally to judgments, settlements and all forms of alternative dispute resolution.