TortsProf Blog

Fraud in Indiana State Fair Fund Claims

The Associated Press reports that a woman has pled guilty for submitting false claims to the state tort fund created to compenstate the victims of the Indiana State Fair stage collapse in 2011.   This example raises the interesting question about how to prevent fraudulent claims when administering a compensation fund.

- SBS

Missouri Supreme Court Holds Cap on Non-Economic Damages Violates State Constitution

In a decision issued July 31st, the Missouri Supreme Court struck down the state's statutory cap on non-economic damages as violating the Missouri state constitution.  Specifically, the court found that the cap violated the right to a trial by jury.  A copy of the decision is available here (pdf).

- SBS

Does Medical Malpractice Deter?

Michael Frakes (Cornell) has posted a new article to SSRN, Does Medical Malpractice Deter? The Impact of Tort Reforms and Malpractice Standard Reforms on Healthcare Quality.  The abstract provides:

Despite the fundamental role of deterrence in the theoretical justification for medical malpractice law, surprisingly little evidence has been put forth to date bearing on its existence and scope. Using data from the 1979 to 2005 National Hospital Discharge Surveys and drawing on an extensive set of variations in various tort measures (e.g., damage caps) and malpractice standard-of-care rules (Frakes 2012a), I estimate a small and statistically insignificant relationship between malpractice forces and two metrics of healthcare quality emphasized by the Agency for Healthcare Research and Quality: avoidable hospitalization rates (reflective of outpatient quality) and inpatient mortality rates for selected medical conditions. At most, the evidence implies an arguably modest degree of malpractice-induced deterrence. For instance, at one end of the 95% confidence interval, the lack of a non-economic damages cap (indicative of higher malpractice pressure) is associated with only a 4% decrease in avoidable hospitalizations.

OK Med-Mal Judgments At 10 Year Low

The Tulsa World reports that medical malpractice judgments in Oklahoma are at a ten-year low.  Both tort reform proponents and opponents attribute the stats to the impact of OK's 2009 tort reform law, but disagree on whether the result is a good thing.  

- SBS 

Susan Saladoff & Victor Schwartz Discuss "Hot Coffee"

Back in late February, Widener screened the documentary "Hot Coffee" in honor of Scott Cooper's status as incoming President of PA Justice.  As part of the event, Susan Saladoff, the director, appeared via Skype to discuss the movie and answer questions.  Victor Schwartz, General Counsel for the American Tort Reform Association, also appeared to discuss the movie and answer questions.  As far as I know, this is the first time the two "appeared" together, even if it was via Skype.  Ms. Saladoff had already started talking when the recording began; the video is about 45 minutes long.  Enjoy!

http://db.tt/QpuOaXPi

--CJR

Union Leader Op-Ed on Early Offers

Representative J. Brandon Giuda has an op-ed in the Union Leader that explains New Hampshire's early offer law.  Rep. Giuda was one of the legislators heavily involved in its negotiation and drafting.  The most significant point he makes is a confirmation of a suspicion I have had for some time.  If the claimant requests an early offer, rejects that offer, and then fails to receive at least 125% of that offer from the tort system, the claimant will pay the health care provider's attorney's fee for the early offer process only.  That will likely be quite cheap.  This obviously ameliorates the fear of those who have been arguing that the scheme was too draconian.  My hope is that it is a strong enough disincentive to prevent claimants from gaming the system.  If claimants believe there is no downside to requesting an early offer, almost all of them will.  If many claimants consistently refuse the offers, the health care provider will decide it is a waste of time and will stop making offers, meaning this needed alternative will no longer be available to claimants.  There is reason to hope that those who request the offer have already decided they prefer the certainty of economic loss delivered quickly and the offers that are made will be accepted at a substantial rate, but only time will tell.

--CJR  

Olson on Early Offers

Walter Olson has an op-ed on early offers in todays New York Post.

--CJR

More on Early Offers

I realize we have readers not terribly interested in early offers.  I hope to take a break from them after this.

            Max Kennerly, of the Beasley firm in Philadelphia, posted some comments on my previous early offers posts and, instead of answering them piecemeal, I want to address them comprehensively.  The crux of Kennerly’s opposition to early offers is actually the same as my support for them:  the desire that claimants receive compensation.           

            As I understand Kennerly’s comments, he has two principal objections.  First, the penalty for turning down the offer will exacerbate the amount of claimants who do not recover because it will prevent lawyers from taking their cases.  Second, the amount of  and process to obtain the early offer would be insufficient for a variety of reasons. 

The Penalty for Turning Down the Early Offer Will Lead Attorneys to Turn Down Cases.

            Kennerly notes a 2006 New England Journal of Medicine article finding that approximately one in six claimants with valid claims did not recover.  He believes the addition of the bond and fee-shifting will mean more claimants will not be able to obtain a lawyer (because of the risk involved).

           There are two responses to this concern.  First, New Hampshire’s law has safeguards in place that encourage claimants to have an attorney involved in the initial decision of whether to seek an early offer.  Unrepresented claimants are assigned a neutral advisor whose job is to encourage the claimant to seek an attorney and explain the difference between early offers and traditional tort law.  Thus, many claimants will likely have attorneys before the offer is requested, reducing (but not eliminating) the scenario Kennerly fears.  In this vein, I’m actually more concerned that claimants who would benefit from early offers will fail to request them on the advice of counsel than I am that claimants will request an offer when it is ill-advised. 

            Second, and more significantly, the only way a claimant will have the burden of fee-shifting attached to the claim is if the claimant requested an offer and the offer has been made.  In other words, the claimant has already been assured economic loss (on this issue, see Kennerly’s next objection), a modest amount for pain and suffering, and the payment of her attorney’s fees.  If the concern is that one in six claimants with valid claims recovers nothing, surely this is an improvement.  Especially when one considers the fact that the most egregiously injured claimants often recover only a portion of economic loss pursuant to tort law.  

  

The Amount of and Process to Obtain the Early Offer Would Be Insufficient. 

            Kennerly has a number of objections to the amount of and process to obtain an early offer.  As to the amount, he believes that economic loss is not properly included in the law.  Economic loss is the recovery by the claimant of the actual out-of-pocket expenses caused by the tortfeasor.  The largest categories of economic loss, or “specials,” are medical bills and lost wages.  Past medical bills and lost wages are paid at the time the claim is made and accepted.  Future medical bills are paid as the bills accrue.  Kennerly currently objects to the method of payment of future lost wages.  He thinks:  (1) they should be paid in a lump sum and (2) future economic losses are incomplete because of an exclusion for “earning capacity.”  

            In repaying economic loss for future lost wages, there is nothing necessary about paying a lump sum.  It was generally understood to be a trade off of less accuracy for administrative efficiency.  Making calculations about what someone will earn 30 years from now involves a considerable amount of guess work.  (One of my favorite examples of this comes in the related area of future medical expenses.  In Seffert v. Los Angeles Transit Lines, “Drugs for 34 years” was estimated at $1,000.  The plaintiff likely paid more!).  Paying the wage losses as they accrue, with increases for inflation, seems acceptable for an alternative compensation program like early offers.

            The issue of whether a claimant would receive complete economic loss because of the exclusion for “earning capacity” has been discussed at length.  Kennerly is concerned that the exclusion will cause any number of claimants, such as college students, to receive essentially nothing for future wage loss.  I think the statute as written should be interpreted differently.  The statute provides for payment of future lost wages and it includes in economic loss “100% of the claimant’s salary, wages, or income from self-employment or contract work lost as a result of the medical injury.”  It also makes clear that in the analogous situation of a minor injured prior to the age of majority who is unable to work, payment for future lost wages will be based on a particular wage index.  Perhaps not the individuation Kennerly wants, but substantial.    

            Still, I wondered about the meaning of “earning capacity,” which was not defined in the statute.  Jeffrey O’Connell advised on the drafting of the statute, and it turns out that language is his and was not changed during the course of negotiations.  He explained the intent of the phrase.  Loss of earning capacity is to be distinguished from loss of actually expected earnings.  It covers, for example, the spouse of a wealthy individual who is not working now, and is not necessarily expecting to be employed, for the loss or lessening of the potential to earn money.  Apparently, this is recoverable in some jurisdictions.  That clarification is being sought, which should remove any doubt about the matter. 

            Finally, Kennerly has objections to the procedure of obtaining compensation under early offers.  First, he said there is a danger of discontinuing the accrual payments at any time (a point related to his lump sum argument).  This is unlikely for two reasons.  First, there are the procedural safeguards I’ve mentioned before.  I won’t repeat them now, but they are in this post (under point 2).  Second, reneging on promised compensation is not in the interest of the health care providers who sought this law in the first place.  They wanted an alternative way to compensate injured patients.  If no one uses the alternative, it is worthless.  Reneging on payments will ruin any chance that attorneys will recommend the early offers process.

            His second procedural objection is to the administrative burden of submitting expenses as they accrue.  There is undoubtedly a burden in so doing.  However, it is easy to overemphasize it.  Medical bills are already processed by health insurers.  Claimants earning a salary should be easy to process.  Once the health care provider has the salary, it must be divided into weekly installments and updated annually for inflation.  That’s not difficult.  Hourly earners will undoubtedly be more trouble.  However, there are large administrative burdens to a malpractice case as well.

            Kennerly has 2 final points.  First, he said if you want an early offer system, you don’t need a law.  The insurers and health care providers can simply make their offers earlier.  They could, but they don’t.  And they won’t.  They are doing what makes economic sense to them.  And they will continue to do so unless different incentives are put in place.  (There is also the possibility of a contractual alternative, but new incentives are needed.)           

            Finally, he is concerned that only weak cases will be dumped into the early offer system, meaning that anyone compensated through it will be undeserving.  Unlike many auto cases, med mal cases tend to involve very serious losses.  Serious losses cost serious money.  Insurers may settle weak auto cases for nuisance value, but I don’t see them settling weak med mal cases, even pursuant to early offers.  The incentives aren’t there.  Moreover, there are claimants who would prefer to avoid litigation and receive swift and certain compensation, even if their case is strong.  They should have this opportunity.

--CJR

Does Early Offers Cover Future Lost Wages? Yes.

Over at Litigation & Trial, Max Kennerly has found a problem with the early offer law, but it is not as serious as he first believed. 

Kennerly argues that early offers do not cover future lost wages.  He arrives at this conclusion by noting that the definition of "economic loss" includes wages, but does not include "earning capacity."  His conclusion is that "wages" only means wages that would have been earned at the time the claim is filed.  He then provides an example of someone who lost $50,000 in past lost wages and Kennerly is concerned that he will only receive the $50,000 in lost wages. 

The statute makes it clear that future lost wages are included.  Section 5:19-C:5 provides that future lost wages will be paid.  That section divides payments by the health care provider into section I, covering economic losses previously incurred, and Section II, covering future economic losses.  Subpart b to Section II covers lost wages, and states:  "Payment of lost wages shall be made weekly."  Moreover, the payments are adjusted annually to keep up with inflation. 

What then does "earning capacity" mean?  Kennerly is right that it should have been defined in the statute.  However, I think he arrived at the answer in his updated post that responded to my comment.  Moreover, in so doing, I think he sheds light on the nature of early offers.  He says that "earning capacity" includes "estimates of increased wages due either to individual career advancement or advancement of wages as a whole in a particular sector."  Early offers does include increased wages due to inflation.  What it doesn't include, what it can't include, based on its very nature, is the individualized treatment that Kennerly wants.  

This is the tradeoff.  Tort law generally provides individualized justice.  If you want to push your case far enough, a jury will decide whether the health care provider was liable and how much pain and suffering that the claimant, this particular claimant, suffered.  As a result, it can be slow, averaging about 5 years per med mal case, and expensive, chewing up a lot of transaction costs.  Early offers is based more on an insurance premise.  The claimant gives up the possibility of having a jury take all of her particular circumstances into account for recovery that is certain and much swifter.  Especially when one considers that the most seriously injured claimants often recover only a fraction of their economic loss and claimants lose a large portion (around 80%) of tried med mal cases, the tort route can be daunting for claimants who understand it. 

As I have said before, early offers is not for everyone.  Kennerly proffers a college student client who had no lost wages, but the potential to earn $3 to $5 million.  Absent more information, I would say this client should not request an early offer if one were possible.  But there are claimants for whom it makes sense.  I was a plaintiffs' lawyer, and I can recall any number of clients for whom it would have made sense.  I hope plaintiffs' attorneys in New Hampshire will give it fair consideration as an alternative for those types of clients.

--CJR

Early Offers

                On Wednesday, the legislature in New Hampshire voted to override Governor Lynch’s veto of the early offers bill.  Despite some imperfections in the bill, it was a good decision.  Because all of the criticism is coming from the claimants’ perspective, I specifically state that the early offers law is good for claimants.  I defended an earlier version of the bill from the claimants’ perspective here.

                In a post on Wednesday, The Pop Tort pronounced early offers “horrendous.”  Unlike the editors of many torts-related blogs, I don’t know the people who write for The Pop Tort.  I don’t always agree with their positions, but I admire their dedication to victims of tortious conduct.  This is a major reason why I want to respond to their early offers post.  I would like those typically supportive of claimants to seriously consider endorsing early offers.

                Because the bill has changed since I last defended it, I will start by briefly explaining the version that is now the law of New Hampshire.  Pursuant to the bill, a patient who believes she is the victim of malpractice may send a notice of injury to the heath care provider requesting an early offer.  The provider has 90 days to decide to extend an early offer and can ask the patient to undergo a physical exam.  If extended, the offer must cover all economic loss—medical bills and lost wages.  There are modest amounts of pain and suffering damages included based on classification of the injury as determined using the National Practitioner Data Bank severity scale.  Moreover, the offer includes payment of the claimant’s attorney.  The patient then has 60 days to accept or reject the early offer.  If she accepts the offer, the case is over.  However, if she rejects the offer and pursues a tort claim, she must be awarded at least 125 percent of the early offer or have to pay the defendant’s attorney’s fees.  To ensure these fees can be paid, a bond must be posted.

                I begin by examining the specific points of opposition in the post. 

                1.            Early offers provides extremely limited compensation.

This depends on what is meant.  To be considered an early offer, the health care provider must offer to pay all economic loss plus a modest, set amount for pain and suffering.  For catastrophic injuries involving tremendous economic loss, an early offer could be millions of dollars.  I assume that what is meant is that the amounts for pain and suffering are limited.  It is true that the amounts for pain and suffering are less than are theoretically available under tort law, but compensation is much swifter and more certain.  That is the trade-off.  Moreover, empirical studies, including some specific to malpractice, routinely find that the most severely injured claimants recover only a portion of economic loss.  Thus, for the most severely injured patients, the recovery of full economic loss, which is mandatory under early offers, would be an improvement. 

Other commentators have argued that early offers would be unfair to claimants who did not have a lot of medical bills or lost wages; regarding lost wages, this would be particularly true of children, those who are retired, and those who do not work outside the home.  The response to this point is that early offers may not be beneficial for everyone.  If the claimant does not have a lot of economic loss, there may not be a pressing need for a financial recovery.  Under such conditions, the claimant may decide the better course is to pursue a tort claim.  Although, it may be significant to claimants who do not work outside the home that “replacement services” are available as economic loss.

In a similar vein, The Pop Tort quotes an editorial from the Union Leader complaining that early offers featured “absurdly low caps.”  Damages are not capped.  Pursuant to a cap, the claimant would still have to go through the normal litigation process.  At the end of the process, if the claimant had managed to achieve a verdict in excess of the amount of the cap, then the cap would reduce the recovery.  Instead, this is a trade-off of swift and certain recovery for economic loss and a small, set amount for pain and suffering. 

                2.            Early offers provides incentives to reject portions of the claimant’s damages.

The Pop Tort post states, “the injured patients’ ability to collect what amounts to a severely-capped compensation would be infected by conflicts of interest at every single step, beginning with allowing the medical provider to choose its own doctor to decide a patient’s damages.”  Perhaps this is what is meant by “lowballed,” which appears repeatedly in commentary on early offers (including in the editorial quoted by The Pop Tort).  It is the only definition of the term that makes sense.  A health care provider cannot “lowball” a claimant in the sense of offering anything less than economic loss plus the modest amount for pain and suffering indicated by the National Practitioner Date Bank’s severity scale.  An offer that is less than that does not qualify as an early offer and the provisions of the law would have no effect on the claimant. 

Thus, I will assume “lowballed” to mean that the health care provider will formally offer economic loss, but then reduce real economic loss because of conflicts of interest.  The law provides safeguards for that danger.  For instance, the claimant must agree to the physician suggested by the health care provider to examine the claimant’s injuries.  If no agreement is reached, the hearing officer will select the physician.  The physician conducting the examination “shall not be affiliated directly or indirectly in any way with the medical care provider alleged to have caused the injury.”  Moreover, any time a claimant requests payment of economic loss and that payment is rejected, the health care provider must notify the claimant in writing about the basis for denial and inform the claimant about the appeal process. 

Claimants have the right to request a hearing officer to resolve a dispute at any time.  A hearing officer is “a person of judicial and/or legal training, common sense, and a respect for the law, chosen by the agreement of the parties from a list of neutral persons maintained by the judicial branch office of mediation and arbitration.”  If no agreement is reached, a hearing officer is selected at random from the list.  No hearing officer may be employed by the insurance department (a change from an earlier version of the bill made to mollify opponents) or shall serve if the officer would have a conflict under the state’s legal and judicial ethics codes.  The health care provider must pay for the hearing officer and if the hearing officer determines the health care provider’s position was frivolous, he or she can force the health care provider to reimburse the claimant for the costs of the hearing up to $1,000 or, if the claimant is unrepresented, pay the claimant double the amount that was frivolously disputed or denied.

                3.            Claimants are asked to sign away their rights in a consent process that “violates even the most basic precepts of what constitutes a voluntary program.”

Contrary to this suggestion, I think New Hampshire went to great lengths to protect claimants.  Here is the process mandated by the law.  At the time the early offer is requested, the claimant is given a document that informs her that her right to seek a jury trial may be affected; that there is a right to consult an attorney (who will be paid by the health care provider in the event of an accepted early offer); that the claimant is free to pursue a tort claim if no early offer is made.  Moreover, if the claimant is not represented by counsel, the medical provider must appoint a neutral advisor to explain the difference between early offers and the tort system.  The claimant is then given several days after meeting with the advisor to withdraw the notice of claim.  In other words, no claimant will sign the waiver without either the advice of counsel or the advice of the neutral advisor.

                4.            If the claimant requests and rejects an early offer, then he or she must receive 125 percent of the offer in the tort system or pay the health care provider’s attorney’s fees.

A penalty is needed to keep claimants from “gaming the system” by requesting an early offer without being serious about accepting it.  If claimants continually asked for and rejected early offers, health care providers would have no incentive to spend the time and effort necessary to offer them.  The alternative system would break down, and tort would be the only option for claimants.  Candidly, I would have preferred forcing the claimant to prove negligence to a clear and convincing standard, but the House rejected that idea.  Keep in mind that the claimant is only forced to pay the health care provider’s attorney’s fees after she has voluntarily requested an offer and decided she wanted more than complete coverage of economic loss, plus a small amount for pain and suffering and then failed to prove to a jury that she was damaged more than 125% of that amount (previously alleged to be extremely limited).  If the case was subsequently settled, the attorney’s fees would likely become a component of the settlement agreement.

                Early offers allows, but does not force, a claimant to bypass the tort system.  Tort law has virtues, but among them are not certainty and swiftness.  Because of an understandable focus on individual justice, the tort system can be very uncertain and slow, with significant transaction costs.  There are many claimants who would prefer to have their claims resolved along insurance principles—with more certain payment for economic loss, taking care of the their urgent needs.  I have sat at the hospital bed of a catastrophically injured loved one.  After his health, my main concern was that he not be bankrupted by the enormous costs of life-saving care. 

                Some claimants have the resources to wait out a five-year malpractice struggle.  Some claimants may enjoy the adversarial proceedings of depositions, interrogatories, and cross examinations.  But all do not, and early offers gives them a possible way around them, while providing for basic economic loss much more swiftly.  Although it may not be for all claimants, I don’t think early offers are horrendous.  Not all tort reforms are bad.

--CJR

NH: Early Offers Veto Overridden

It is not yet being confirmed by the media, but it appears that the legislature has overridden Governor Lynch's veto, making New Hampshire the first state to adopt an early offers law.

Updated:  The veto override is confimed by the New Hampshire Union Leader.

--CJR

Study: TX Tort Reform Did Not Lower Medicare Costs

A new study conducted by a group of researchers including Charles Silver (Texas) concludes that Texas's 2003 tort reforms did not lower health care costs.  The Austin American-Statesman has the details.

--CJR

NH: Lynch Vetoes Early Offers

This was not a perfect bill, but vetoing it for the sake of claimants was a mistake for reasons I explain here.

--CJR

Tort Reform Op Letter in Philly Inquirer

Mark Behrens, a partner at Shook Hardy, authored an opinion letter in Sunday's Philadelphia Inquirer about tort reform in Pennsylvania.   While advocating for tort reform, the letter also provides a good overview of recent changes enacted in Pennsylvania, such as the Fair Share Act, and the home venue rule. 

- SBS 

NH: Conference Committee Reaches Agreement on Early Offers

Senate and House negotiators agreed on a bill that retained the House's "loser pays" provision if a claimant turns down an early offer after requesting it:

A claimant who rejects an early offer and who does not prevail in an action for medical injury against the medical provider by being awarded at least 125 percent of the early offer amount, shall be responsible for paying the medical care provider's reasonable attorney's fees and costs incurred in the proceedings under this chapter.

Both houses are expected to pass it next week and then it will go to the governor.  The Union Leader has details.

--CJR

Missouri Senatorial Candidates Spar Over Tort Reform

St. Louis businessman John Brunner and former State Treasurer Sarah Steelman, both candidates for the U.S. Senate Republican nomination, sparred over tort reform in a debate last week.  The News-Leader has more. 

- SBS

Reforming the Reform: No-Fault Auto Insurance

A couple of weeks ago (while I was busily grading papers and exams), Susan Ladika published a piece at Carinsurance.com that was picked up by Fox Business News entitled Reforming Reform:  Fixing no-fault insurance. 

In the article, the author discusses current efforts to reform no-fault insurance, given its greater-than-expected costs.  No-fault has been successful in some ways.  The article often relies on a 2010 RAND study by James M. Anderson, Paul Heaton, and Stephen J. Carroll, The U.S. Experience with No-Fault Automobile Insurance.  That study, at pages 96-97, found that "no-fault systems provide reimbursement for a larger proportion of economic losses, greater satisfaction with the speed of payment, and faster resolution of third-party claims."  However, no-fault was advertised as being cheaper than liability insurance.  Instead, in most states, it has been just as expensive, if not more so.  As a result, no-fault, which once seemed on the cusp of becoming the law of nearly every state, has lost traction.  What went wrong and how can it be fixed?

First, the thresholds were set poorly.  No-fault was designed to compensate the injured for small and moderate injuries and leave tort for serious injuries.  This would be more efficient and would leave the full (and expensive) tort system for those claims that were sufficient to merit it.  The key is to separate small and moderate claims from serious ones.  This was done by thresholds.  However, monetary thresholds were set too low and verbal thresholds were too vague.  The Ladika article points to three jurisdictions, Georgia, Connecticut, and Colorado, that moved back to liability insurance from no-fault.  In all three jurisdictions, costs were reduced when the state reverted to liability insurance.  However, each jurisdiction had a monetary threshold (as part of a combination threshold) that was miserably low:  Georgia's was $500, Connecticut's was $400, and Colorado's was $500 (though raised to $2,500 before it was repealed in 2003).  Almost any auto accident will create $500 in costs, which means that the tort system will operate in addition to the no-fault system for such claims.  As such, costs are bound to increase.   

In addition to being set too low, monetary thresholds, even if part of a combination threshold, created incentives for padding medical bills, inequitably treated those living in low cost areas, and provided an easy way for no-fault opponents to undermine the law.  Instead, jurisdictions should use a verbal threshold that is sufficiently limited and clear to reduce litigation. 

Second, protections against fraud were not included.  This may be understandable.  No one thought that no-fault would have fraud problems; tort, with its payment for pain and suffering, was supposed to be the favored target for fraud.  However, that was overly optimistic.  No-fault has attracted considerable fraudulent claims in many jurisdictions, and it must be dealt with to keep costs under control.  This may be jurisdiction-specific, but New York has proposed legislation that would:  (1) modify the requirement that insurers pay claims within 30 days if there is a suspicion of fraud; (2) allow the insurance department to review and decertify unscrupulous medical providers from billing and collecting no-fault benefits; and (3) increase penalties and enforcement for insurance fraud.

Third, no-fault insurers did not implement the same restrictions that health insurers routinely use.  The RAND study found that a major problem with no-fault was spiraling health care costs.  However, it was not clear whether total costs increased or there was a reallocation of costs from health insurance to auto insurance.  No-fault insurers need to implement restrictions, such as fee schedules and medical protocols, that are already used by health insurers.  For example, New Jersey recently implemented precertification medical guidelines or "Care Paths."  Care Paths set forth the particular paths of treatment that are acceptable for specified injuries; when the treatment plan deviates from the Care Paths, the treatment will be reimbursed only where demonstrated to be reasonable and necessary. 

Another improvement would be to make no-fault into a choice plan.  Allow motorists to choose between tort and no-fault.  Evidence from Kentucky, New Jersey, and Pennsylvania suggests that a large number of motorists will choose no-fault if given the option.

--CJR

 

47% Decrease In Med Mal Cases in PA

The Pittsburgh Post Gazette reports that the number of medical malpractice cases have dropped 47% in the ten years since two reform measures took effect.  In particular, Pennsylvania requires that "cases be brought in the venue only where the cause of action arose and that a certificate of merit be obtained from a medical professional to certify the lawsuit before complaints are filed."   The Gazette reports:

Despite the 10-year downward trend, there was a small uptick in the number of medical malpractice filings in Pennsylvania between 2010 and 2011. There were 1,528 filings in 2011 and 1,491 filings in 2010; 2010, meanwhile, had the lowest number of filings since the rule changes

- SBS

NH: Early Offers Bill Approved by House; Goes to Conference Committee

Last week, the House version was amended.  Under the Senate bill, if the claimant requested an early offer and then declined it, the claimant would have to prove gross negligence to a clear and convincing standard.  In the House version, if the claimant requested an offer and then declined it, the claimant would have to pay the health care provider's attorney's fees if the claimant lost or recovered approximately the same amount of money that was in the early offer.  Both bills passed with veto-proof majorities.  The Concord Monitor has the story here (scroll down past the first section on sealed bids).

--CJR

House Republicans Continue to Push Tort Reform

From the Blog of the Legal Times:

House Republican leaders continued to push a medical malpractice reform bill this week that caps non-economic damages at $250,000 and limits lawyer contingency fees, arguing that it would save taxpayers $41 billion and prevent defense spending cuts.

BLT has more. 

Thanks to Lisa Smith-Butler for the alert.

- SBS