Medical Malpractice
Wednesday, November 5, 2008ObamaCare Attacks Communities' Ability To Regulate LocallyBy John R. GrahamCategories: Certificates of Need (CON), Hospitals, Insurance Regulation, Medical MalpracticeI've spent much of the day considering the consequences of Sen. Obama's victory in the presidential election to health reform efforts in the states. I regret to say that it does not look good. I wrote an analysis of Sen. McCain's and Sen. Obama's health plans before the election. Whatever health reform comes out of Washington in 2009 or later, Sen. Obama's proposal will only form one ingredient of the package. (My guess is that he will build on the Wyden-Bennett bill.) Nevertheless, his platform is very clear: he intends to take away communities' power to regulate the delivery of health care, by federalizing those parts that are exclusively or mostly under state control:
All three of these issues are elements in PRI's Index of Health Ownership, which measures how much freedom states give their residents to control their own health care. Obviously, if the federal government seizes this power from states, the scope of individuals' health ownership will shrink significantly. While there are other major drawbacks to Sen. Obama's proposal, these are the ones that stand out as attacks on communities' freedom to regulate their own health care providers.
|
Monday, October 27, 2008Product Liability Law: Is "Pre-emption" the Right Question?FDA pre-emption of states' product-liability law assumes a lot By John R. GrahamCategories: Medical Malpractice, Pharmaceuticals, VermontThe media are (justifiably) interested in the Bush administration's (or, if you prefer, the "Bush regime's") rushing a bunch of new rules into the Code of Federal Regulations that would "pre-empt" states' product-liability laws. According to the Wall Street Journal, these rules "could block product-safety lawsuits by consumers and states." The article notes that the Food & Drug Administration (FDA) used to support the right to sue in state court. However, after President Bush took over, the FDA changed its approach. It immediately asserted that its regulations pre-empt state product-liability law, and developed a so-called Physician Labelling Rule to formalize its stance. In lay language, the FDA claims that if a drug-maker sells a drug that is labelled in accordance with the FDA's requirements, state laws cannot impose a higher standard. As I have already discussed, this will come to a head once the U.S. Supreme Court hears Levine vs. Wyeth, a case in which the Vermont Supreme Court rejected the claim of FDA pre-emption and concurred with a product-liability award to a patient who took a drug made by Wyeth. In my previous post, I argued that pre-emption makes sense, because the drug trades in interstate commerce (a federal responsibility). However, I noted that the patient was free to sue the health professional who administered the drug (and the clinic where she worked) under state law (and had successfully done so). Having read and thought some more about it, I am reconsidering. Daniel E. Troy was the Bush-appointed lawyer at the FDA when the agency started to assert pre-emption. In a book recently published by the American Enterprise Institute, Mr. Troy makes a cogent and compelling argument in favor of FDA pre-emption. But cogent and compelling are not necessarily convincing. Mr. Troy's argument is largely based on the perspective that the FDA is a body of experts who are the best-placed to know what warnings to put on a label for a medicine. Apparently, this gives the FDA some sort of monopoly over good information: Nobody else should interfere - not even the manufacturer! Mr. Troy gives examples, including prescription tetracycline and over-the-counter smoking-cessation products, where the manufacturers asked for more cautionary labels, partly in response to concerns about states' product-liability laws, and the FDA refused them. As well as debunking the claim that it is too expensive or complicated for drug-makers to add more warnings to labels than the FDA demands, this suggests that it is the FDA that is putting the drug-makers at risk, by refusing to allow them to add warnings to their labels that will bring them into compliance with states' product-liability laws. Don't get me wrong: I understand that these laws often establish "jackpot justice" create "judicial hellholes" which drive prices up and kill innovation. Indeed, my colleagues, Hovannes Abramyan and Lawrence McQuillan, even rank the states according to their litigiousness. (Even worse, this blog-entry comes perilously close to contradicting Mr. McQuillan's position on pre-emption.) But I think that the place to address these problems is the statehouses. After all, that's where we address medical malpractice by physicians, and we know that good reform attracts physicians from other states. Also, I don't think that we should accept the FDA as a monolithic know-it-all with unconstrained power to control information between drug-makers, prescribing physicians, and patients. I'm sure that this won't be my final word on pre-emption, but I want to make sure that I've questioned all my assumptions before I back myself into a corner!
|
Thursday, September 18, 2008Conflicting Visions in ArizonaBy John LaPlanteCategories: Arizona, Medical MalpracticeArizona isn't the land of Barry Goldwater anymore. Recently Gov. Janet Napolitano met with 200 health-care officials and the Mayo Clinic Health Policy Center to call for top-down health care. OK, they didn't call it top down. The news article says that "Napolitano urged adoption of universal health insurance at the federal level," and quickly added "but criticized a proposition on Arizona's November ballot that addresses choice in health-care providers." That proposition is actually a good one.
In other words, the measure would establish as policy the idea that you, are in control of your health, including which insurance to have--or even whether to have it. Not Gov. Napolitano. Not Michael Crow, the president of Arizona State University, who expressed a desire to "blow up the current models." Not Robert Smoldt, the director of the Mayo center who called for "universal health-care insurance." Interestingly, someone else at the conference pointed out something that could go a long ways towards establishing affordability--without a significant government program.
|
Monday, September 15, 2008Rhode Island's Medicaid Waiver Promises Positive ReformLimiting Taxpayer Liability While Increasing Choice: What's Not To Like? By John R. GrahamCategories: Insurance Regulation, Medicaid, Medical Malpractice, Rhode IslandLast month, I made encouraging remarks to the Heartland Institute's outstanding monthly Health Care News about Rhode Island governor Carcieri's evolving proposal to reform Medicaid. Well, the proposal is fully formed, and the state has just submitted its application for a waiver to the federal Centers for Medicare & Medicaid Services. The New York Times does not like it, because it changes "much of its Medicaid program from an open-ended entitlement with no limit on spending to a capped budget with fixed expenditure limits." Well, just because the NY Times criticises it doesn't automatically make it a good idea, but could you imagine even this bastion of the liberal establishment using that kind of language about any other government program? Imagine anxiety over:
In fact, that's sort of what we expect from government programs, isn't it? That they at least pretend to adhere to a budget? Governor Carcieri is a successful, retired businessman who decided to run for chief executive of his home state - his first real political office. His Medicaid waiver is bold and realistic. I'm sure that there's a devil in the details, but the key element is outstanding: accepting a hard cap on federal transfer payments for five years in return for state sovereignty over its Medicaid program. It's a good start - but only a start. Rhode Island ranks a lowly 48th out of 50 in the U.S. Index of Health Ownership - and it's not because of Medicaid, but a bad tort environment and over-regulation of private health insurance. If governor Carcieri shows the same initiative and energy in reforming these parts of health care as he has in Medicaid, then Rhode Island has a healthy future.
|
Friday, September 12, 2008MedMal stats onlineBy Joseph D. ColettiCategories: Medical Malpractice, North CarolinaThe Winston-Salem (NC) Journal has an editorial today supporting the N.C. Medical Board's decision to post "medical malpractice payments of more than $25,000 made by physicians and physician assistants after Oct. 1, 2007. Also available will be information related to any criminal convictions of the doctor or assistant and any disciplinary actions taken against them by the medical board here or in another state." We can hope this will help patients make more informed decisions and start defining the problem for future attempts at reform.
|
Tuesday, September 9, 2008After Malpractice Law Change, Surge in DoctorsBy John LaPlanteCategories: Medical Malpractice, TexasThe Texas Medical Board has approved a record number of licenses for doctors in FY 2008, easing a shortage. One reason may be that the board hired more examiners, who could process applications. Another possible reason? The state's new malpractice law, designed to make it more attractive to practice medicine.
The Texas Alliance for Patient Access has a lot of background information, but the web site of the Texas Medical Association doesn't have the report up yet. UPDATE: You can find the report here: http://www.texmed.org/Template.aspx?id=7071
|
Friday, August 29, 2008Medical Malpractice Update in Wisconsin, W. Virginia, & New YorkSubsidized Funds, Controlled By Politicians, Are No Substitute for Reform By John R. GrahamCategories: Maryland, Medical Malpractice, New York, West Virginia, WisconsinThe Kaiser Daily Health Report gave us an update today on med-mal developments in three states. In West Virginia, the number of med-mal lawsuits increased by 34 percent over a three year period. It looks like a warning sign that something is unravelling since the Mountain State capped non-economic damages and imposed stricter rules of evidence in 2001. Nevertheless, a spokesman for the state medical society was not ready to panic, stating that WV is now "one of the better states in the country" for med-mal insurance. I hope he's not too sanguine: WV ranks 36 of the 50 states in the U.S. Index of Health Ownership, (a.k.a IHOP) 2nd edition, so there is plenty of room for more reform. If the last three years' experience really is a trend, this is no time for the medical society to be complacent. Even more disturbing news comes from New York and Wisconsin. In WI (#39 on medical tort in IHOP), a judge has blocked the transfer of $200 million from the Injured Patients and Families Compensation Fund to plug the state's deficit. In NY (#46 in IHOP), Gov. Paterson has signed a one-year moratorium on med-mal insurance rates, which were likely to go up by one third. Too bad price controls are no substitute for real med-mal reform - and neither are these compensation funds.. Although they shift the pain from doctors (so the state medical societies quiet down), they merely shift the pain to taxpayers, as the Wisconsin situation illustrates. We've seen it before in New York, and Maryland.
|
Friday, August 15, 2008U.S. Index of Health Ownership 2nd Edition Is HereAlabama up, Utah down, New York still in the basement: Where's your state? By John R. GrahamCategories: Alabama, Alaska, Arizona, Arkansas, California, Certificates of Need (CON), Colorado, Connecticut, Delaware, District of Columbia, Florida, Georgia, Hawaii, Hospitals, Idaho, Illinois, Indiana, Insurance Regulation, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Medicaid, Medical Malpractice, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Retail Clinics, Rhode Island, SCHIP, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, WyomingPacific Research Instite has published the 2nd edition of the U.S. Index of Health Ownership, the only ranking of health care in the states that uses criteria of individual choice. Americans lack the basic freedom to make their own health care decisions. The Index measures the degree to which individuals, be they patients, health professionals, entrepreneurs, or taxpayers, "own" the health care in their states. The lack of health ownership is a real problem. Almost half of the country's health care spending is in the hands of the government, instead of patients themselves. The other half is governed by regulations inflicted upon doctors, health plans and patients. The Index uses 24 variables to quantify how state laws and regulations affect the liberty of citizens involved in state government health plans (primarily Medicaid), the private health-insurance market, and the provision of medical services. It also assesses the effect of medical tort on people's freedom to engage health services. Alabama, Montana, Nebraska, North Dakota, and New Hampshire finished in the top five, as the states that allow their citizens the highest degree of health ownership. Alabama leads the pack primarily because of a lightly regulated private insurance market, and good control of state government programs. Also, the state performs well on medical tort indicators. Alabama's regulatory environment for providers favors competition, and government health programs run more effectively than in most states. New York, Massachusetts, Rhode Island, Vermont, and North Carolina rounded out the bottom five, as the states in which the government has taken the most undue control of health care from its citizens. This is the second year that New York was in last place. The state suffers from government health-care programs that are out of control, a grossly overregulated private-insurance market, and almost completely uncompetitive provider markets. A full listing of all 50 states and their rankings is contained in the Index. The Index will give concerned citizens a good basis to demand reforms from their state politicians that will put American families in charge of American health care, instead of government and special interests.
|
Wednesday, June 6, 2007Index of Health Care Ownership is Out! Every State Ranked!Utah Top of the List, New York Bottom of the Barrel on 24 Measures By John R. GrahamCategories: Alabama, Certificates of Need (CON), Delaware, Hospitals, Insurance Regulation, Maine, Medicaid, Medical Malpractice, Nebraska, New Jersey, New York, North Carolina, North Dakota, Retail Clinics, Utah, VermontPRI has released the Index of Health Ownership, which uses 24 variables to rank all the states according to their residents' freedom from undue government interference in health care. Top 5: Utah, Nebraska, Delaware, North Dakota, Alabama Bottom 5: New York, Vermont, New Jersey, North Carolina, Maine I know SPN wants to collaborate in promoting this effort and I'll be in touch with John LaPlante on that. Any SPN members who want more color or would like me to speak in their state please contact me. This is something we intend to repeat periodically, hopefully annually. Go forth and own your health care!
|
| SPN Headquarters: 2020 North 14th Street Ste 250 Arlington, VA 22201 Phone: (703) 243-1655 | West Coast Office: PO Box 5208 Richmond, CA 94805 Phone: (510) 965-9700 |
