Friday, July 25, 2008

Myth of Medical Liability Crisis

On August 25, 2005, Governor Blagojevich signed Public Act 94-677, the medical malpractice bill, into law. The Governor explained:

"I signed the medical malpractice reform law to keep doctors in our state and make health care more accessible and more affordable. Just one year later, we are seeing dramatic results. New competition in the malpractice insurance market is resulting in lower premium rates, and it's making an Illinois a state where doctors want to practice."

Wow. Do Illinoisans live in some version of Alice in Wonderland? The Illinois Governor signed the law to keep doctors in Illinois and to make health care more accessible and more affordable. Those are hardly lofty goals for the state of Illinois’ residents.

With the help of the Illinois general Assembly and Governor Blagojevich, physicians and surgeons in Illinois are becoming nothing more than a commodity.

And it is no wonder that doctors want to practice in Illinois. Section 7 of Illinois Public Act 94-677 purports to set up an organization called “Medical Disciplinary Board.” Presumably there was no actual organization in Illinois that is entrusted with the duty of investigating complaints from Illinois citizens against physicians and surgeons, investigating those complaints and, when appropriate, discipline the physician.

As lay members of the Illinois citizenry, we were led to believe that the Illinois Department of Financial and Professional (IDFPR) was responsible for disciplining “bad doctors in Illinois.” Based upon the language in Public Act 94-677, Illinois citizens were overtly misled. In fact, there has been (and continues to be) no organization dedicated to ensure that physicians and surgeons practicing in Illinois are doing so under the professional standards of competency and ethics.

It follows that when I requested that the IDFRP investigate the professional conduct of Dr. Chris Dangles, the request would be ignored. There simply is no mechanism to investigate and investigate the doctors in Illinois.

The icing on the cake is that the Illinois General Assembly added an actual date of death for Section 7 of the Illinois Public Act 94-677. According to the plain language of the Act, “This section is scheduled to be repealed on January 1, 2007.” Why?

The creation of an actual “Medical Disciplinary Board” is basic to ensuring the public that they will be safe and properly cared-for by Illinois physicians. The creation of this Board should not be made contingent on the adoption of the “Medical Malpractice Reform Act” and its primary goals (as stated by Governor Blagojevich) that Illinois needs to keep doctors in our state and make health care more accessible and more affordable. It is curious to me that the Governor did not recognize that the creation of a Medical Disciplinary Board would also be an important goal.

The section of the Public Act that establishes the Medical Disciplinary Board should have been bifurcated out of the Public Act and made its own law. Whereas there may some controversy about the issue of monetary caps on an injured plaintiff’s non-economic damages, there certainly cannot be a controversy about the long since needed creation of a “Medical Disciplinary Board” in Illinois.


1. Illinois Governor Blagojevich presumes that many doctors in Illinois are actually guilty of committing malpractice.

The Public Act addresses the issue of damages. In fact, the issue of damages would never materialize unless and until the Illinois doctor was found to have committed medical malpractice (i.e. deviated from the acceptable medical standard of care).

If the Governor were truly concerned about public safety then he would be concerned about the number of viable medical malpractice claims in Illinois. The emphasis should be on making certain that a disciplinary board and peer review board exist in Illinois to weed out the bad doctors in Illinois.

As lay consumers of medical services in Illinois, we were misled to believe that the Illinois Department of Financial and Professional Regulations (IDFPR) maintained its public trust in investigating complaints against doctors and disciplining those doctors where appropriate.

However, in that the Public Act goes to great length and specificity in creating a “Medical Disciplinary Board,” it would seem that the IDFPR has simply been a front for issue of bad doctor discipline in Illinois. We have all been pretty na├»ve.

I have said it before and it bears repeating here --- if the state of Illinois would encourage peer review of doctors and seriously investigate and discipline bad doctors, then the number of medical malpractice claims would fall. Generally, injured patients are not interested in being dragged through court proceedings. The injured patient just wants to make sure that the bad doctor is held accountable and is told by his peers that the actions or clinical decisions or behavior deviated from the acceptable standard of care. The injured patients would heal, feel at peace and move on with their lives much sooner than if the same injured patient was dragged through a court system.

I am in the process of researching the state-by-state date. But, in the end, I expect that my conclusion will be that states with the strongest medical disciplinary commissions also have the fewest medical malpractice claims.

2. The Governor's statement (and in fact the Public Act he signed into law) presumes that the general public is filing baseless lawsuits against Illinois doctors.

There is no support for that presumption. In reality, there is a mechanism for sanctions against the plaintiff and his or her attorney if they file a baseless complaint. Moreover, the filing of a complaint against a doctor requires that the aggrieved plaintiff submit a report (with the initial complaint) written by another doctor that practices in the appropriate specialty and that opines that there is a meritorious claim against the doctor.

The current medical malpractice system requires that the injured patient plaintiff locate physicians that are willing to stand up in court and opine that the defendant doctor deviated from the standard of care. There is a sleazy underworld of physicians who serve as "hired experts" against defendant doctors.

The medical community generally frowns on doctors who testify against another doctor. So whether it is a "hired expert" or the injured patient plaintiff's treating physician that testifies against the defendant doctor, courageous doctors that speak up and support the injured patient plaintiff is apt to be challenged both as to their motives and aptitude. Why would practicing physicians choose to place themselves in that position? The fact is that most do not.

To my knowledge, there is no other profession that deals directly with the public and then when a member of the public complains, the profession has instituted a strict set of rules that require essentially an expert letter of support to be filed with the initial complaint. The medical profession has gone to unusual and, indeed, unnecessary extremes to protect itself.

Illinois still has not adopted the “Sorry Works” Program.

3. The Governor seems to prefer “quantity” of doctors to the “quality” of the doctors. Indeed, the glaring omission in the Governor's statement is the issue of physician discipline. The discipline issue goes directly to “quality.”

Governor Blagojevich emphasizes the positive impact of the increase in the number of doctors in Illinois. Of course doctors will want to practice medicine in a state that rarely disciplines its doctors for violations of the Medical Practice Act, incompetence or unethical behavior.

The Governor's attitude seems to be "the more the better" when it comes to physicians in Illinois. Ridiculous. As a society, we should have more respect for the medical profession than to believe that there can be an unending supply of physicians. Physicians do not multiply like bunnies or mice.

There is not an unending supply of medical resources in our country. Similarly, there is not an unending supply of physicians. The key is for physicians and surgeons to be competent and ethical. The key is for physicians to spend more time honing their skills than lobbying for medical liability reform.

So from where are all the new doctors in Illinois coming? Are the new doctors FMGs (foreign medical graduates)? Why are they leaving their original states? Were they disciplined in those states? The Governor’s simple statement begs for more questions.

It is elementary that one good physician can provide medical care, treatment and education to a patient. It would follow that the particular patient can use the information provide by the good doctor to make life-style changes, take medications as prescribed and, in the end, the informed patient would use fewer valuable, scarce medical resources.

So where are we on the Public Act actually becoming law in the state of Illinois?

A courageous Cook County Circuit Court Judge Diane Joan Larsen in Lebron v. Gottlieb Memorial Hospital found that the medical malpractice reform law was unconstitutional. Judge Larsen sided with plaintiffs’ argument that the caps on non-economic damages such as pain and suffering in medical malpractice cases violate victims’ rights. Judge Larsen determined that state lawmakers interfered with juries’ power to award appropriate damages by approving the caps. She declared the law unconstitutional and “invalid in its entirety.

The case is now in the hands of Illinois Supreme Court. On May 7, 2008, the Illinois State Medical Society and the American Medical Society filed an Amicus Curiae brief in the case of Lebron v. Gottlieb Memorial Hospital.

Stay tuned . . .

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