Like most of us who are getting older and feelng the effects of aging, I've come to realize that I am not the invulnerable superhero I've always believed myself to be. In my younger years I would have to be bleeding profusely from a gunshot or knife wound, or have a bone protruding through my skin to feel the need to see a Doctor. Now as I glide towards my golden years, I realize that the need to be able to seek quality health care is no longer the luxury it once was. Consequently I took it upon myself to make sure that I had health insurance so that when the inevitable aches and pains of later life set in, I would be covered. Little did I think at the time that it would be dealing with that selfsame health insurance company that would be the CAUSE of many headaches. This is because I, like so many others do, assumed the insurance company was my PARTNER in health, not the ADVERSAY to it that it turned out to be.
Insurance companies are private, profit-driven enterprises. This means they must take in more than they pay out in order to maintain profitability and thereby viability. In a market that is faced with a shrinking number of people paying premiums and ever-increasing health care costs, this has become a real existential battle for the survival of the industry. Every insurance company employs a battery of both lawyers and accounts because every decision on a claim is run through a model of risk/reward, cost/benefit analysis. To pay or not to pay, that is the question. If an insurance company opts NOT to pay a claim, there are risks inherent in that decision.
Most states have a state run insurance commission headed by a commisioner to help mediate conflicts between an insurance company and an insured over a disputed claim for coverage. If the insurance company can show legal or contractural cause for the denial of the claim, however slight, the insurance commissioner will usually side with the insurance company. Once it has done so, most states then allow for an insured to prosecute a case in civil court for breach of contract, bad faith refusal to pay a claim, or malfeasance against the insurer, but such claims are highly unlikely to succeed, and the lawyers and bean-counters of the insurance company know this. The out-of pocket costs to the insured to pursue these remedies is also often prohibitive, and the insurance company lawyers and accountants know this as well. Consequently, more and more claims are routinely being denied by insurance companies resulting in mounting health care costs to consumers, growing losses to doctors, and increases in fees for both medical services and insurance premiums in a vicious and self-perpetuating cycle. This is just one way lawyers, and to be fair, accountants are impacting health care costs. The other, and for more onerous way is in the area of tort law known as medical malpractice.
In the interests of full disclosure, let me state that I used to make my living as a paralegal and as such, I have worked for law firms that represented both Plaintiffs and Defendants in malpractice cases. I say this so you understand that I am not a layperson and that I have a foundation in both education and experience to support my hypotheses in this article, and that is what these are. That said, when I was a rookie paralegal fresh out of college I was working at my first firm in Los Angeles. This firm specialized in representing plaintiffs in tort cases, including medical malpractice. I remember going into the library to do a bit of research and finding a medical journal on the conference table. The journal was open to an article about the effect of medical malpractice lawsuits on the medical profession, and I remember reading a statistic that said something to the effect of "two out of every ten doctors practicing today can expect to see the inside of a courtroom in their professional lifetimes."
Cut to the future some thirteen years or so and you find me at the end of my paralegal career working for a defense firm in beautiful downtown Atlanta, and I'm looking at another medical journal article on the same subject. Only this time, the statistic reads more like "3 out of every 5 doctors in practice today will likely be sued for medical malpractice." That's an increase of 40% in less than fifteen years. What accounts for that dramatic increase in malpractice lawsuit filings in so short a time? I don't have the definitive answer to that, but I DO have a few ideas.
For one thing, when I first started in the professon, malpractice was a highly specialized area of tort law practiced only by the most successful and venerable of trial lawyers. These were the kinds of lawyers that drove the Mercedes and BMWs, wore the thousand dollar suits, carried the aircraft aluminum briefcases, and worked in highrise luxury office suites. It had to be that way because it was very expensive to successfully prosecute a malpractice case. Expert witnesses, jury consultants, etc were all very expensive and if you wanted to get the multi-million verdict, it cost a lot of money to prepare your case for trial. It was also hard to even get a case initiated because you had to have an affidavit from a doctor to attest that there was malpractice committed. This wasn't easy to come by since doctors used to abide by the old Reagan rule, "Thou shalt not speak ill of a fellow Republican" or doctor, in this case.
After I moved to Atlanta and took the job with an insurance defense firm, I noticed that more than a few of the cases that crossed my desk had been filed by the type of lawyer I categorize as "Andy the Ambulance Chaser." You know the type I'm referring to. The middle aged frumpy man with a suit that hasn't been pressed since the day it came off the hanger in the store, shoes that are scuffed, with the heels worn round, and soles that look like they've walked 100 miles, driving an old four door sedan with dings and rust spots, and practicing law out of a store-front in a strip mall located off the frontage road behind a Stuckey's restaurant. These are the classic "turn-em and burn-em" lawyers whose practice is mainly personal injury cases of dubious merit, and the whole intent is to get a quick settlement from the insurance company without having to expend too much time, effort, or energy. This type of lawyer does not typically take on a medical malpractice case because it's just too much work.
I asked one of the partners how an "Andy the Ambulance Chaser" type lawyer could pursue a medical malpractice claim and he advised me that the only reason it was now possible was that a cottage industry had sprung up in the medical community. Doctors in their late 40s and early 50s who were fed up with hazards of the practice of medicine, practicing defensive medicine, dealing with HMOs and PPOs, etc. decided to take early retirement and quit treating patients. However, these doctors did not go south to Florida to sail their boats, play golf, dodge hurricanes, etc. Instead they adopted an "if you can't beat 'em, join 'em" mentatlity and opted to sell their services and expertise to the legal community as expert witnesses and consulatants. This enabled lawyers like "Andy the Ambulance Chaser" to gain access to a "hired gun" to get his opinion letter and jump into the arena that had previously been off his radar.
Even so, "Andy the Ambulance Chaser" isn't desirous of taking his cases all the way to the "twelve in the box," referring of course to a jury trial. He's still in the "turn and burn" mentality of negotiating a quick settlement for what we in the defense term "nuissance value." "Andy" knows the "cost/benefit, risk/reward" formula that insurance company bean counters use to decide whether to try or settle a case, so he makes enough of a nuissance of himself time after time to get settlement offers on his cases. Consequently, he is able to take on multiple cases, regardless of their merit, and the insurance company passes these costs down to the doctors via higher malpractice insurance premiums. The doctors in turn pass these higher premium costs onto their patients via higher fees, and the patients feed the higher fees to their insurance companies resulting in higher health insurance premiums, etc., and the wheel goes round and round.
In addition to the "Andy" lawyers out there, there are the big guns like former Senator and filanderer John "Hairdo" Edwards. Now these are guys of TV and movie legend that stand in front of the jury box and make the women swoon and the men think they've found a new best friend. This kind of lawyer tugs at the heartstrings of a jury and gets them to redistribute millions of insurance company dollars to the grieving widow of "Roger the Roofer," a middle-aged, overweight, hard drinking, chain smoking roofer who just happened to have the good fortune to die on the operating table of a renowned cardiologist, thereby attracting the attention of the firm of Dewey, Screwum & Howe, which employs the wunderkid "Edwards" and makes a cause celebre out of the overindulgent roofer that he would never have been had he merely survived his quaduple bypass operation. Never mind that his lifestyle LED to that operation, or that under the new Obamacare, he probably wouldn't be able to GET that operation, he is now the focus of considerable weeping and hand-wringing in a dog-and-pony show that is solely for the benefit of an audience of "twelve in the box." And the jurors lap it up and reward the "pretty boy" lawyer with the insurance company's millions like it was nothing.
Now if those jurors could only hear "pretty boy" talking about them at the trial prep meeting in his swanky highrise office the night before, it would be VERY different story, because most lawyers think of the average juror as someone "too stupid to get out of jury duty." They also regard inner city jury pools as the "money pits" or "honey pots" because the average resident comes with a lifetime's worth of liberally induced class warfare propaganda and can't wait to "stick it to the rich" doctor or insurance company. The irony is that he's only sticking it to himself and others like him, because insurance companies don't PAY this judgment, they COLLECT it from their customers, namely other doctors. This results in ALL doctors having to pay higher premiums for their malpractice insurance. The next time that juror goes to see his or her doctor, that doctor will pass along the increased costs of his malpractice insurance to that juror and the rest of his or her patients. Finally, when that juror submits the higher medical bill to his or her insurance company either the claim will be denied and he or she will be stuck with the higher bill, or the claim will be paid, and the juror will get a notice in the mail a few weeks later informing him or her that his OWN insurance premium will be going up. You've got to love the irony in THAT.
This calls to mind a scene from the movie adaptation of John Grisham's book "Runaway Jury" in which Gene Hackman plays a hard-bitten, cynical and RUTHLESS jury consultant. He's in the courthouse men's room with Dustin Hoffman who plays the plaintiff's lawyer, a frumpy, rumpled schulb who's in reality anything but. In the scene, the lawyer expresses his confidence that he's going to win the case, and Gene Hackman's character responds with something to the effect of : "So what if you do. Nothing's going to change. He's still dead. The only thing that will change is when the widow goes to visit his grave, she'll drive to the cemetery in a more expensive car, and when she's walking to the gravesite and she snaps a heel on the cobblestone walk, the heel will come off of a much nicer shoe. All the rest is just colored bubbles." Cynical, yes, but truer words were never spoken. And yet, when President Obama stood in front of an auditorium full of doctors talking about health care reform, he stated that he did NOT favor any cap on medical malpractice verdicts. Why on earth would anyone truly interested in reforming the healthcare insurance system say that?
The answer is very simple and was revealed in technicolor when both the House and Senate rolled out their 1000 plus page healthcare reform bills and in those mountains of paper, revealed their intent to create a government run insurance company to compete with those in the private sector. Now, if memory serves, we already HAVE one of those. It's called Medicare, but they want to create a whole new government entity to compete against companies like Aetna, Blue Cross Blue Shield, Kaiser, etc. Afterwards, President Obama stood in front of his "pet" reporters and asked how such a public company could drive the private ones out of business. I noted he had his little "I know something you don't" smirk on his face as he asked this because he knows the answer all too well.
Private insurance companies have to be profitable to survive and even more so to thrive. In a nutshell, they must take in more money than they pay out. A public company, however, has no such requirement. Look at any government run business such as Amtrak, the Post Office, Medicare, etc. and you will find more red ink on their books that you'll find drops of water in the Red Sea. This is because public companies are backed by the full faith, credit, and printing presses of the US Government. They CANNOT fail. Additionally, most American businesses are protected from such disparities by federal Anti-trust laws that prevent price fixing and other unfair business practices. One of the only two exceptions to this protection is, ironically enough, the INSURANCE industry.
So here's where the rubber meets the road. By allowing the abuses of the legal system to continue to affect the healthcare and insurance industries, the government is basically guaranteeing that the private sector insurers will NOT be able to compete effectively against a public company. Remember that private companies have to remain profitable so they can't pay out more than they take in, and they have no control over things like litigation that drive up their costs, so they have no choice but to pass these costs on to the consumers. If the consumer sees a public company that will save them an appreciable amount of money on their health insurance, they're going to defect like lemmings. As these defections become more massive, you will see private insurance companies closing their doors and declaring bankruptcy until the government run company is the only one left standing. It's human nature to save money, especially when you're dealing with a federal government bent on sucking it out from our wallets like a hoover vacuum cleaner. If you doubt this, visit your local Wal-Mart sometime. It's a living illustration of the point.
Now that the government will be the only source for healthcare insurance coverage left in America, some things will happen very rapidly. First, the trial lawyers will be told the party's over and reform and verdict caps will happen. The government will do this because now it's protecting its' OWN assets. Second, the same Geithner gestapo that's controlling pay for Wall Street executives will turn its focus to our doctors and they'll be told what they can charge going forward. Makes sense that the government should control doctors pay since they're the ones paying them, right? Maybe, but I doubt that the average doctor will like being told he's going to make the salary of a mid-level government bureaucrat for the rest of his life. I further doubt that students trying to decide on their career choices are going to want to pursue a medical career that requires four years of college, four years of medical school, an internship, and residence only to find at the end of all that work that he or she will make less then an assistant manager at JC Penny assuming of course, there still IS a JC Penny chain that survives Obama-nomics. If we cannot recruit qualified applicants to our medical schools, what will we do next? We'll either have to incentevise students or lower the admission requirements, resulting in less competent professionals being responsible for our healthcare, not unlike what happened to our military when we were forced to lower recruiting standards to allow convicted felons to serve because we couldn't get enough bodies otherwise.
Most of the doctors in practice today are older men and women who will be retiring soon, and there are not a lot of new ones coming along to take their places. There will be even less of them entering the profession going forward because the financial incentive to pursue the career, given all the work and expense it will take, will be gone. People talk about the fear of rationing of health care, and they're right. When you have increasing demand, and dwindling supply, it's an inevitability. How that care will be rationed is something only the government knows, but my guess it will be something along the lines of how old you are, and how many productive years of tax paying you have ahead of you. Look out Seniors. Logan's Run may soon be a realty for you, although I don't think even THIS government will try to actually KILL you. They'll just make sure you only get the pain medicine or medical marijuana you need to keep you quiet while you wait to shuffle loose the mortal coil. Forget the quadruple bypasses, hip replacements, knee replacements, etc. that you're getting now, though.
I don't make these predictions as if I have a crystal ball because I don't. What I DO have is eyes to see, ears to hear, and a brain to think with. Is it an accident that we have almost as many people LEAVING this country these days as we have trying to get into it? Is it a coincidence that our insurance companies are trying to ship patients to India to have surgeries today because the cost is about ten percent of what it here, and if so, why is that? Most Indian doctors and surgeons were educated and trained in western countries, including the United States. They do their medical school, internships, and residencies here. Given that we have a serious shortage of doctors in this country, why would they choose to leave? They are given preferential treatment with regard to getting green cards and they can surely find jobs in our hospitals and clinics, and yet they choose to leave as soon as they complete their education and training.
I asked a friend about this one time and he told me that he saw what our doctors go through with the HMOs, PPOs, malpractice suits, etc. and he would NEVER consider staying here and putting up with all that. Furthermore, he told me that India has an emerging industrial economy not unlike our own following the end of World War II. What he is saying, in a nutshell, is that there are better opportunities available in India than there are here, and this was before the prospect of nationalized healthcare emerged on the horizon. He left to return to India more than 6 years ago. Why then would heart surgery cost $10,000.00 there and $100,000.00 here? Maybe it's because we're only training Indian doctors here, not their LAWYERS.
To summarize, every country that has undertaken to socialize medicine is full of horror stories. We have horror stories here, too, but they mostly involve INSURANCE coverage issues. Let's not overreact here and throw the baby out with the bathwater. We DO need some reform in our health care INSURANCE industry, but NOT in the actual practice of medicine. Let's keep doctors in charge of healthcare, not lawyers or government bureaucrats. We'll all feel better. If all of this has given you a headache, remember what the doctor says: "Take two aspirin, and call me in the morning." If congress does what it wants to do, you can still get two aspirin because they sell those at your local grocery store. However, when you try to call the doctor in the morning, you're going to be on HOLD for a long, long time.
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