Med Mal News

New Hampshire Interests Play Tug-of-War with Surplus Med-Mal Claims Fund

The State of New Hampshire wants to shift surplus funds from the New Hampshire Medical Malpractice Joint Underwriting Association to the general fund so that it can use the money to finance programs aimed at expanding health care access. Three named plaintiffs, representing the interests of more than 200 health care providers who hold medical malpractice policies, have filed an emergency petition for extraordinary writ of mandamus and writ of prohibition against the malpractice insurance fund, eight individual fund board members, the State's insurance department and the New Hampshire State Treasurer. In Tuttle v. New Hampshire Medical Malpractice Joint Underwriting Association by and through its Board of Directors, No. 09-E-0148 (Belknap Co., N.H., Super. Ct.), the petitioners ask that the malpractice fund be prohibited from transferring any of its $110 million surplus to any other state agencies, a move that would be permitted if pending legislation is passed. The petitioners claim they have contractual rights to the fund and that any excess should be disbursed to them, if to anyone. Scott O'Connell, a Boston partner at Nixon Peabody, the firm representing the care providers, contends that although legislation appropriately could change the rules for the malpractice fund going forward, it “can't undo the ground rules that govern how this surplus was amassed and undo all of these contractual expectancies.”

President Addresses Quality and Costs at AMA Conference

In a speech at the annual Conference of the American Medical Association on June 15, President Barack Obama voiced his dissatisfaction with the high costs of medical care in the United States. He also signaled a willingness to work with medical care providers to decrease their concerns about medical malpractice lawsuits, although he did not explain just how.

In discussing the reasons for current high medical costs, Obama blasted the “system of incentives where the more tests and services are provided, the more money we pay ' It's a model that rewards the quantity of care rather than the quality of care; that pushes you, the doctor, to see more and more patients even if you can't spend much time with each, and gives [doctors] every incentive to order that extra MRI or EKG, even if it's not necessary. It's a model that has taken the pursuit of medicine from a profession ' a calling ' to a business.” He suggested giving extra compensation to medical providers based not on their ordering more tests, but on favorable patient outcomes. As additional reasons for current high care costs, the President pointed also to the high cost of medical education and to what he saw as a failure by medical providers to treat patients with newly improved procedures and medications, relying instead on tried and true methods that may not be as effective.

Turning to the issue of malpractice liability, President Obama stated, “Now, I recognize that it will be hard to make some of these changes if doctors feel like they're constantly looking over their shoulders for fear of lawsuits. I recognize that ' . I understand some doctors may feel the need to order more tests and treatments to avoid being legally vulnerable. That's a real issue.” Noting that he was not advocating for medical malpractice damage caps, which the President believes “can be unfair to people who've been wrongfully harmed,” Obama allowed he would like “to work with the AMA so we can scale back the excessive defensive medicine that reinforces our current system, and shift to a system where we are providing better care, simply ' rather than simply more treatment.”

President Obama's speech to the AMA Conference may be viewed at: http://www.whitehouse.gov/the_press_office/Remarks-by-the-President-to-the-Annual-Conference-of-the-American-Medical-Association/.

'No News Is Good News' ' Not Necessarily So

Researchers reviewing the medical records of a random sampling of 5434 people who were being treated in a number of care settings found that patients who assumed that their test results were normal because they never heard otherwise from their doctors should not be so certain. In fact, in 7.1% of the cases in which abnormalities were indicated by these tests, nobody informed the patient that the test results were troubling. Lawrence P. Casalino, Lawrence P., et. al.: Arch Intern Med, June 22 2009;169(12):1123-1129. Compounding this problem was a not uncommon practice among health care providers to tell patients that “no news is good news,” and that those patients could relax if they heard nothing bad from the medical office. Noting that diagnostic errors are the most common impetus for medical malpractice suits, the study's authors recommend that health care providers implement systems for tracking and informing patients about test results. These are found in publications the authors cite in footnotes 36-41 of their article, which is available online, free of charge, at: http://archinte.ama-ssn.org/cgi/content/full/169/12/1123.

New Hampshire Interests Play Tug-of-War with Surplus Med-Mal Claims Fund

The State of New Hampshire wants to shift surplus funds from the New Hampshire Medical Malpractice Joint Underwriting Association to the general fund so that it can use the money to finance programs aimed at expanding health care access. Three named plaintiffs, representing the interests of more than 200 health care providers who hold medical malpractice policies, have filed an emergency petition for extraordinary writ of mandamus and writ of prohibition against the malpractice insurance fund, eight individual fund board members, the State's insurance department and the New Hampshire State Treasurer. In Tuttle v. New Hampshire Medical Malpractice Joint Underwriting Association by and through its Board of Directors, No. 09-E-0148 (Belknap Co., N.H., Super. Ct.), the petitioners ask that the malpractice fund be prohibited from transferring any of its $110 million surplus to any other state agencies, a move that would be permitted if pending legislation is passed. The petitioners claim they have contractual rights to the fund and that any excess should be disbursed to them, if to anyone. Scott O'Connell, a Boston partner at Nixon Peabody, the firm representing the care providers, contends that although legislation appropriately could change the rules for the malpractice fund going forward, it “can't undo the ground rules that govern how this surplus was amassed and undo all of these contractual expectancies.”

President Addresses Quality and Costs at AMA Conference

In a speech at the annual Conference of the American Medical Association on June 15, President Barack Obama voiced his dissatisfaction with the high costs of medical care in the United States. He also signaled a willingness to work with medical care providers to decrease their concerns about medical malpractice lawsuits, although he did not explain just how.

In discussing the reasons for current high medical costs, Obama blasted the “system of incentives where the more tests and services are provided, the more money we pay ' It's a model that rewards the quantity of care rather than the quality of care; that pushes you, the doctor, to see more and more patients even if you can't spend much time with each, and gives [doctors] every incentive to order that extra MRI or EKG, even if it's not necessary. It's a model that has taken the pursuit of medicine from a profession ' a calling ' to a business.” He suggested giving extra compensation to medical providers based not on their ordering more tests, but on favorable patient outcomes. As additional reasons for current high care costs, the President pointed also to the high cost of medical education and to what he saw as a failure by medical providers to treat patients with newly improved procedures and medications, relying instead on tried and true methods that may not be as effective.

Turning to the issue of malpractice liability, President Obama stated, “Now, I recognize that it will be hard to make some of these changes if doctors feel like they're constantly looking over their shoulders for fear of lawsuits. I recognize that ' . I understand some doctors may feel the need to order more tests and treatments to avoid being legally vulnerable. That's a real issue.” Noting that he was not advocating for medical malpractice damage caps, which the President believes “can be unfair to people who've been wrongfully harmed,” Obama allowed he would like “to work with the AMA so we can scale back the excessive defensive medicine that reinforces our current system, and shift to a system where we are providing better care, simply ' rather than simply more treatment.”

President Obama's speech to the AMA Conference may be viewed at: http://www.whitehouse.gov/the_press_office/Remarks-by-the-President-to-the-Annual-Conference-of-the-American-Medical-Association/.

'No News Is Good News' ' Not Necessarily So

Researchers reviewing the medical records of a random sampling of 5434 people who were being treated in a number of care settings found that patients who assumed that their test results were normal because they never heard otherwise from their doctors should not be so certain. In fact, in 7.1% of the cases in which abnormalities were indicated by these tests, nobody informed the patient that the test results were troubling. Lawrence P. Casalino, Lawrence P., et. al.: Arch Intern Med, June 22 2009;169(12):1123-1129. Compounding this problem was a not uncommon practice among health care providers to tell patients that “no news is good news,” and that those patients could relax if they heard nothing bad from the medical office. Noting that diagnostic errors are the most common impetus for medical malpractice suits, the study's authors recommend that health care providers implement systems for tracking and informing patients about test results. These are found in publications the authors cite in footnotes 36-41 of their article, which is available online, free of charge, at: http://archinte.ama-ssn.org/cgi/content/full/169/12/1123.