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Archive for Thursday, March 29, 2007

Medical response

March 29, 2007

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To the editor:

Recent letters to the editor about legislation (HB 2530) clarifying the application of the Kansas Consumer Protection Act to physicians and health care providers are very misleading. Despite what the Kansas Trial Lawyers Association would have you believe, this legislation does not prevent physicians from being held accountable for their actions, nor does it keep them from being sued for deceptive practices.

The bill just makes it clear that claims involving a health care provider's competence, or the care and treatment of patients will continue to be handled as medical malpractice claims in the tort system; and claims over deceptive billing, misleading advertising or inappropriate business practices will continue to be brought under the Consumer Protection Act, just as they are today. Without this clarification, there would be more unnecessary and duplicative litigation, increased defense and malpractice insurance costs and, ultimately, increased health care costs for Kansans.

This legislation does not protect "deceptive and dishonest" health care providers. It does discourage enterprising plaintiffs' lawyers from filing costly and meritless consumer protection act claims, and using an otherwise good law in ways that were not intended.

Jerry Slaughter,

executive director,

Kansas Medical Society, Topeka

Comments

Baille 7 years, 5 months ago

Holding medical care providers who intentionally deceive their patients responsible under the Kansas Protection Act will not change the fact that "claims involving a health care provider's competence, or the care and treatment of patients will continue to be handled as medical malpractice claims in the tort system."

A claim under the CPA does not involve the practitioner's competence or the care and treatment of the patient - although those may well be the basis for simultaneous claims. The claim at issue involves deliberate deception by a service provider. That is precisely the type of claim meant to be brought under the Kansas Consumer Protection Act.

You say that if doctors who intentionally deceive their patients were held responsible under the CPA "there would be more unnecessary and duplicative litigation, increased defense and malpractice insurance costs and, ultimately, increased health care costs for Kansans." I don't think a claim under the CPA is unnecessary and it is not duplicative. It won't increase insurance costs as the insurance industry has repeatedly stated that malpractice insurance costs are unaffected by efforts to gut the civil justice system. Ah! But the age-old scare tactic that everyone health care costs will rise? Please! Last time I had a loved one in the hospital it charged her $6.00 for an aspirin. I could have brought her a bottle for that price. The surgeon drove away in his six-figure Jaguar. A one-week stay in a hospital costs as much as a new house in Topeka. New hospital additions, new specialty clinics, new "partnerships" between health care Goliaths the health care industry is doing just fine.

You end by saying that this bill does not protect deceptive doctors but discourages civil justice attorneys from bringing "costly and meritless" claims. We aren't stupid. Any attorney who can afford to bring costly and meritless claims must be independently wealthy. A meritless claim fails as a matter of law, fails before a jury, or gets overturned after a long and costly appeal. A plaintiff's attorney can not afford to eat those kinds of costs. "Meritless claims" are a myth - the bogeyman of the insurance industry. They don't exist in any great measure, but they sure do scare the crap out of people.

The Kansas Medical Society "is a professional association of physicians...dedicated, through advocacy and communication, to improving the environment in which physicians practice medicine." When it comes to the rare doctor who deliberately deceives his/her patient, I am less concerned with "improving the environment in which the physician practices" and more concerned with making sure the patient harmed by such deception gets a fair shake.

A doctor who deliberately deceives a patient may or may not commit medical negligence during the care and treatment of a patient, but defeating the Deceptive Doctor Bill (HB 2530) will make sure the deceptive doctor is held responsible for the harm he/she causes.

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Jamesaust 7 years, 5 months ago

"Any attorney who can afford to bring costly and meritless claims must be independently wealthy."

I agree. That would indeed identify a key characteristic of attorneys who bring costly and meritless claims. (I belive one is running right now for the Presidential nomination of an entire political party bought and paid for by such types.)

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Baille 7 years, 5 months ago

Uh-huh. I f they are independently wealthy, they didn't amke their money practicing law. There is nothing like investing a few hundred thousand dollars in frivolous lawsuits to make one go bankrupt quickly.

Your dig at Edwards is unwarranted as well. He did win some CP cases in his time, and I have no doubt that you will advocate for the self-serving ACOG guidelines, but the only junk science involved with those trials occurred when ACOG abandoned medical research and evidence for advocacy based on revisonist science. While there are many things that can lead to CP, hypoxia during labor and delivery remains one of them. That was supported in the medical community and by solid medical sciend and research before Edwards, and it is supported now.

By the way, Edwards won jury trials using practicing physicians to support his claims. While there is a certain feeling among those who seek to eviscerate our civil justice system that jurors are stupid and easily swayed, I do not share that feeling. People know crap when they smell it.

Also, while it is true that the insurance industry often hires professional doctor witnesses (w--res, I think they are called) to testify in work comp cases, in the medical malpractice field states have taken steps to prevent this by requiring testifying experts be actual practitioners. No expert expert witnesses allowed.

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Jamesaust 7 years, 5 months ago

Dear, I personally know a tort lawyer who specializes in targeting 'small cap' companies whose stocks have declined by alleging this or that about disclosure of information. The guy is "agnostic" about whether anything has in fact been done wrong but (a) there's always shareholders who are angry that their investment loses money and (b) there's always 1 out of 100 companies who'll pay to make the gadflies go away. He started out poor as a church mouse but 'reinvests' his 'winnings' back into the 'business.'

I'll refrain from candid observations about anyone who would say "investing a few hundred thousand dollars in frivolous lawsuits [would] make one go bankrupt quickly." Whether they're frivolous or not isn't relevant to whether they generate a 'payday' but rather whether the properly game the system. Moral truth and court verdicts overlap only some of the time.

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Jamesaust 7 years, 5 months ago

And I think you're poorly read - and a perfect juror for a tort trial.

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