Monday, August 15, 2005

Med Malady



With the Governor's signature of the medical malpractice bill looming, now's as good a time as any to share some of my thoughts on the issue. As Chairman of the House Judiciary Committee, I had the opportunity to oversee the hearings on this issue last session. Lots of hearings. With a lot of testimony. Conflicting testimony. Lots of conflicting testimony. Since it's a moot point, and exhausting, to rehash the issues, let me distill them as much as possible. (And then some) Yes, I believe that doctors have left Illinois. Yes, it is a legitimate issue. Yes, I believe that many have left because of the size of their insurance premiums. But no, I do not believe that those premiums have been driven by excessive verdicts.

I think that caps on pain and suffering awards (since euphemistically renamed 'non-economic damages') will not only not solve the issue, but that they seriously undercut some of the fundamental underpinnings of our judicial system. And let me reiterate that I would have potentially still considered supporting caps I I believed that they would solve anything.

(Let me throw in a quick comment here. I know that there are very strong views on this topic and have seen that intelligent people can and do disagree about this issue. So if anybody wants to weigh in, please do, but let's try to be civil about it.)

Rather than engage in an after-the-fact substantive debate, let me throw this out there. I think that the vote on the bill, and the assistance that it received from the leaders and soon from the Governor was more a function of political concerns than policy considerations. Supporters of caps did an excellent job of controlling the message for the last couple of years and using it as a political bludgeon. The Maag/Karmeier Supreme Court scared the daylights of every Democrat within earshot.

Neither of the leaders, nor the Governor, could risk alienating Southern Illinois voters over this speeding train. But flash forward ahead a year or so. What happens, if, the bill gets struck down by the Illinois Supreme Court (My early line on that - 80%)? Do those who supported the bill still get viewed as heroes, or as parties complicit in forestalling any real solution?

For the Democrats out there, let me also toss this in the mix. If you are from southern Illinois, this is an issue that obviously hits home. But at the same time, we have traditionally been the party to stand up for victims, the disadvantaged, in short, the people most adversely affected by the bill. How do you reconcile the position that your local legislators took on the bill? In other words, at what point does political expediency trump fundamental philosophy?

I don't envy the position in which my downstate colleagues found themselves, but at the same time, it will be interesting to see what this portends for our party going forward.

20 Comments:

At August 15, 2005 at 9:05 PM, Anonymous Anonymous said...

Didn't the Governor argue against caps when he was a legislator? His signature on the med mal bill will make for a nice mail piece next to an old quote from the house floor. Disappointing.

Way to go on the blog, John. Hoping a few idiots don't turn the whole thing sour.

 
At August 15, 2005 at 9:17 PM, Anonymous Ben Crane - trial lawyer said...

I am more than 80% confident in the bill being stricken down. Wisconsin declared their caps unconstitutional last month, and they didn't have the advantage of the special legislation clause that we have. In fact, I don't know why ISMIE let this bill pass.

The caps apply prospectively, meaning if I am injured by malpractice today, and the bill is signed tomorrow, my claim is not subject to the cap. If I am injured the day after tomorrow, my claim is subject to the cap. With the normal medical malpractice case, you won't file for at least one and up to two years (generally) from the date of injury. And, then, it takes 3 to 5 years to litigate the case. So, from the date the Governor signs the bill, it will take at least four and most likely seven years for the first case subject to the cap to get to a jury.

In the meantime, I'll bet, a test case will be filed and pushed quickly through the system, and the Supreme Court will hear argument in two to three years, before any other cases fall prey to the cap.

The insurance reform, however, will take effect immediately, and the doctors will begin to reap the benefits. In two to three years, ISMIE will be an open book, and then they will have to explain themselves.

Then, hopefully, we can enact meaningful insurance reform.

 
At August 15, 2005 at 9:18 PM, Blogger Judy said...

John-- I am one of the supporters of the damage caps. I agree that the high premiums on insurance are not solely due to excessive verdicts; there are other factors. I think all factors need to be explored and those that can be cared for on the state level should be. We need to work together to solve this problem.

In reference, to your question about the Illinois Supreme Court; I think that if the court strikes down the law than those who supported it have to go back to work and try to craft legislation that would stand up to the judicial test. This would call for bipartisan work, such as though a task force.

I also think that those who supported the bill will look like individuals who tried to solve a problem. Their solution may have been unacceptable to the court, but they tried. The interpretation will depend on which side you were on with regard to the bill.

It is a bit early to be presupposing where the battle lines will be drawn on this one. It depends on what grounds the court would strike it down or if they would just send it back to the legislature to fix until it was consistent with the court's decision. This is more likely because courts really do not like striking down legislative bills.

Kudos on the blog.

 
At August 15, 2005 at 9:18 PM, Anonymous ICJL said...

No disagreement that the result of the Karmeier-Maag race put the fear of God into many Southern Illinois legislators.

But the fact is the outcome of that race was not totally based on med-mal problems and doctors leaving the area ... (which is a less-visible problem in the northern part of the state because of a more dense population)... it was the result of years of an abusive judicial system and a relationship between judges, trial lawyers and local politicians that finally (via the doctor problem) exploded. And it's not over yet.

But with regard to med-mal, there are as many valid (probably more) arguments that show that caps on damages DO provide relief. An ICJL study in early 2004 showed that more than half of the doctors in Madison and St.Clair counties had been sued -- yet only 20 percent ever were forced to pay, either through a verdict or a settlement.

Do you think those other 80 percent had free legal services, no insurance costs, no time away from patients for depostions, etc? All of them were affected, financially, in time away from patients, and in a growing concern about what can they do in the practice of medicine to prevent litigation.

Let's get this bill signed and let's contine the dialogue and continue to work to keep doctors in Illinois and to keep lawyers representing and acting on behalf of those who truly need their help.

And congratulations again on your willingness to engage in dialogue and/or monologue!

 
At August 15, 2005 at 9:35 PM, Blogger Rep. John Fritchey said...

"...it was the result of years of an abusive judicial system and a relationship between judges, trial lawyers and local politicians that finally (via the doctor problem) exploded. And it's not over yet."

I agree that it is definitely not over. Unfortunatley, I believe that a lot of the forces involved in financing the med-mal fight could care less about medical access for southern Illinoisans, but were simply using this as a step toward overall tort reform.

In fact, the radio ads have already been running decrying the legal climate in Illinois as being chilling to the economy. Even if some downstaters agree with the idea of tort reform, it bothers me to see them get used as political pawns.

 
At August 15, 2005 at 9:42 PM, Blogger Judy said...

John,

I agree. We should not be using people as pawns. There does need to be tort reform, the question is how best to achieve such reforms. The ads do not usually help the cause. Everyone involved needs to come to the table a negotiate the best solution.

I am sure that you can so easily classify everyone into one neat little group. I think that most people who support this may desire there to be more access for those in Southern Illinois. There are always some that do not care either way, but this can hardly be said for all.

Illinois' legal climate, especially in, I think, Madison County, was a national issue because of it being "a legal wasteland".

Instead of throwing these phrases around we need to solve the problem. Turning phrases sounds great in campaigns but it does little to solve the problem.

 
At August 15, 2005 at 9:43 PM, Anonymous Staffer said...

As for the downstate democrats, it bothers us all "to see them get used as political pawns."

However, as a Chicago legislator, you could never understand how painful the politics really are down here.

 
At August 15, 2005 at 9:49 PM, Blogger Rep. John Fritchey said...

Judy, I fully agree with you.

And to the Staffer, I agree with you as well. From what I can gather, the nuances of downstate politics are every bit as complex as those in Chicago. Territorial issues, power issues, family issues, and it all gets thrown on top of the substantive issues that all of us have in common. Access to healthcare, job opportunities, quality schools, etc.

 
At August 15, 2005 at 9:52 PM, Blogger Rep. John Fritchey said...

And having reread what I had written earlier, let me clarify something. My comments are in no way intended to sound paternalistic. I would feel the same way if it was the folks in Chicago or the collar counties being used as pawns, and both groups have been in the past. It's just in this case, it's the people in southern Illinois that happen to be at ground zero.

It's actually fascinating to observe the disparity in the importance given to the med mal issue in Chicago compared to downstate.

 
At August 15, 2005 at 9:54 PM, Blogger Judy said...

John

There is no doubt thata there are lots of those nasty subtexts playing out in Chicago. I wish it would stop because I want to deal with real issues.

Of course this saga interms of "personality politics" plays itself out the national levle as well.

Politics is one big power struggle and good legislative work suffers for subtexts or ideological reasons.

 
At August 15, 2005 at 9:59 PM, Blogger Rep. John Fritchey said...

Well of course it does. But ironically, it's the electorate that could change that very quickly if they would pay more attention to who they put into office and what those people were doing once elected.

 
At August 15, 2005 at 9:59 PM, Anonymous ICJL said...

Med-mal reform (and keeping docs in Illinois) is/was not the only reform needed. Class action, asbestos, forum-shopping -- all are problems with the judicial system in Illinois and they are super-charged problems in Southern Illinois.

There are similar -- not to the same degree -- problems elsewhere in Illinois and we need to solve them, too. We need to keep our state friendly to business, to doctors, to lawyers and, most importantly, to the taxpayers and families.

 
At August 15, 2005 at 10:00 PM, Blogger Judy said...

John,

MedMal reform is not given much play in Chicago for reasons other than its importance. Chicago is busy with the family saga between Gov. Blagojevich and Alserman Dick Mell as well as the ever increasing city hall scandals. Corruption is rampant upo here in the city government, so we are acting like an island and trying to deal with that.

Our media also does not covert politics or government well. They look only for scandal and neve talk about legislation on the federal or state level. THat is the real problem. The media drives the agenda. We talk about scandal, which is important, but to the exclusion of other important issues. They only reported the HR 6 (Energy Policy Act) being signed because President Bush came here to sign it otherwise nothing much would have been said. I have seen nothing in local newspapers regarding legislation in the state legisltaure. This is a sad commentary on the media as providing a public service.

 
At August 15, 2005 at 10:05 PM, Blogger Judy said...

John,

That is the problem in a nutshell. The electorate does not pay attention to what goes on in Springfield, City Hall, or Washington unless there is conflict. Illinoians seem to lay down and play dead until something excites them. I wish it was not his way. I ebncourage people to participate and get ot know their elected officiels.

Of course, we also need to get on the media about covering important issues because they do drive the ageda.

 
At August 16, 2005 at 8:41 AM, Blogger Dan Johnson-Weinberger said...

Ben and John (and anyone else): what are some of the other physician/insurance reforms that ought to be passed in '06 now that the civil side has been 'reformed'? I'm thinking of bills that yank the license of a physician that is found guilty of medical malpractice, or similar reforms that try to separate out those few very bad physicians from the risk pool of the 98% of good physicians. It's my understanding that those reforms did not make it in the final bill.

 
At August 16, 2005 at 11:51 AM, Anonymous Anonymous said...

A couple of things. John - I agree that there is definitely a problem with medical access in Southern Illinois and with doctors leaving the state in general, especially in border communities.

Now I'm going to start there and jump. ISMIE writes something like two-thirds of the med-mal policies in the state, right? ISMIE is a doctor-owned insurance company, right? ONE of the problems in the med-mal debate, as I see it, is the fact that two interests that really *should* be divergent, are in league together. While both are definitely concerned with lowering the cost of providing med-mal insurance coverage, insurance companies are also concerned with maximizing profits, something docs should care little about, unless they have a financial stake in the company and receive a benefit from the profits.

Further disconcerting would be if anecdotal reports about docs denying and/or delaying treatment to trial lawyers and their families are true. That would be a violation of the hypocratic oath.

All that being said, I also agree that the med-mal debate really has less to do with medical malpractice than it does tort reform. You only need to follow the money trail in the Maag/Karmeier race (specifically, Karmeier) to understand that. With millions of dollars pouring in from the National and Illinois Chambers of Commerce, it's clear that this was a business issue rather than a medical one for them.

The sad truth is that the goal of business groups and the Chamber is to limit the liability of large corporations (primarily pharmaceutical companies, insurance companies and any corporation likely to face a product liability suit) while restricting access to the courtroom for the average individual.

Large corporations have teams of high-priced lawyers to go to battle for them, something Joe Six-Pack definitely doesn't have access to. With limited relief available, the costs start to outweigh the benefits for the average Joe when considering legal action. Undaunted, the corporations throw up every legal roadblock and maneuver to raise the costs even further for an individual, to the point where seeking relief will cost them more than they might ever see in return.

And while legal access, in and of itself, is a right, there is no right to fair and equal representation. This is a fact that corporations know and are exploiting on a daily basis. At the end of the day, it's all about the bottom line -- how to increase profits for shareholders (doctors, in ISMIE's case), and how to ensure that the CEO's salary isn't lowered so he can afford that $7 million wedding to his new, 20-years-his-junior trophy bride.

Back to the docs. They are leaving, but they are not packing up their '62 Nash Rambler station wagon with their entire household and homesteading until they can find a decent wage to earn their keep. They're packing up and selling their million-dollar homes, sending their stuff with movers, and driving away in their Mercedes and Beemers to buy a new multi-million dollar home in a new place with "progressive" reforms in place.

 
At August 16, 2005 at 2:50 PM, Anonymous Anonymous said...

11:51 AM is right on target.

Now, what it takes is a candidate with the patience and persistence to get out and explain to the ordinary voters in Southern Illinois that they are being taken advantage of by the big corporations, insurance companies, and health conglomerates.

 
At August 16, 2005 at 7:24 PM, Blogger Judy said...

It takes patience of the electorate to listen to prestations about the issue. We are quick to jump for party lines without listening to all sides, researching, or thinking about an issue. We want the soundbite that makes the evening news.

 
At August 16, 2005 at 9:10 PM, Anonymous Ben Crane - trial lawyer said...

This is an incredibly complex set of issues. You have the bare bones facts of the ("frivolous lawsuits and jackpot jury verdicts are raising premiums, causing doctors to leave") issue [I could talk forever about this, but won't]. You have the public relations issues. You have the political issues. And then you have the most perplexing issue to me, the conflict of interest between ISMIE (the insurance company) and ISMIS (the med society).

This complexity is why the comments posted by Judy, this evening, and 11:51 a.m. strike a glancing blow, but don't hit the issue head on. Both reference the need for patience, one by the electorate and one by the electeds. In the soundbite, billboard era we live in, patience is at a premium and something the public and electeds don't (generally) possess in large quantities. Its a hell of a lot easier for Joe Q Public to buy into "frivolous lawsuits and jackpot jury verdicts are raising premiums, causing doctors to leave," then it is to listen to a 10 minute presentation or 20 page dissertation from me on why that argument has no bases in the facts we have, and will have even less bases in the facts we will have once the insurance reform takes hold in two to three years.

It's classic Karl Rove politics. Appeal to the public's natural inclination to look for the quickest answer, rather than right answer to a problem. And above all, don't let facts or the truth get in the way.

Dan, to address your question, there is a portion of the bill that addresses professional regulation of the docs. Speaking in generalities and from the top of my head . . there is an increase in the number of investigators for the IDPR (I believe from 1 for every 300 to 1 for every 150 docs) and an increase in the fine for gross negligence from $10k to $20k. They also opened up the panel that conducts the investiagtions to allow for a lay person (It would sure make sense to put a trial lawyer on that panel). Most importantly, there will be new sunshine on doctors histories. Settlements and verdicts will be published on a state website. There will also be information related to where they have privileges, what there specialty is and the like. This will allow the public to evaluate where, and if, there are shortages in certain specialties.

What more can be done in terms of doctor regulation? Provide doctors who report misgivings of their collegues full immunity and punish those who keep silent. In short, hold them to the same standard that attorneys are in Himmel. If you see someone doing something wrong and don't report it, you are doing something wrong.

 
At August 17, 2005 at 10:38 PM, Blogger Judy said...

ben crane, That short attention span is what troubles me the most. Also problamatic is people on both sides mainly using talking points rather than telling us how they feel about an issue. I want to know how elected officials feel (that goes for individuals too). It is distressing that in most places I see not free discussion but rehashing of talking points from either side.

This need to adhere to talking points makes those like John who want to speak his mind fear saying something that will get him in trouble and the very small number of honest individuals at the federal level willing to take heat for a personal position. We need to do away with talking points in order to have completely honest debates.

This is one of the few places that we actually discuss issues free of talking points or soundbites. This need to be done more often in public by those who represent us.

 

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