APMA News - May 2011 - (Page 78)

Insurance Advisor By William F. Munsey, DPM Does Tort Reform Stand the Test of Time? QUESTION: A new Congress is in session, and the president has publicly indicated his support for tort reform. Given these facts in addition to potential legislation in Congress, do you think any meaningful malpractice reform will occur this year? If so, will it have any positive effect? ANSWER: If the president is sincere, there is a good chance that a reform package will pass in the House, but passage in the Senate is much less certain. Several years ago, when a bill survived the House and Senate, a presidential veto killed the effort. To respond to your second question, we can compare states that have successfully passed legal reforms and have survived legal challenges, with states that have not. Obviously, medical liability reform has stood the test of time and has been effective in bringing balance to a system in which deserving patients can be fairly compensated and doctors treated justly. APMA supports current reform legislation in Congress. Obviously, medical liability reform has stood the test of time and has been effective in bringing balance to a system in which deserving patients can be fairly compensated and doctors treated justly. Tort reform, or lack of it, has created a disparate playing field among states, leading either to premium relief or nightmares depending on where the doctor practices. A comparison among three states demonstrates the difference. In the first two states, the courts upheld medical liability reform. In the third, the state supreme court ruled reform unconstitutional. California enacted tort reform in 1975. That state still has some of the lowest premiums in the country, including a $250,000 cap on noneconomic damages. Prior to enacting tort reform, California had skyrocketing insurance premiums. Texas successfully passed medical liability reform in 2003; in Illinois, the supreme court ruled tort reforms unconstitutional in February 2010. Texas internists paid about $15,000 in premiums in 2010, while their Illinois colleagues paid close to $30,000. General surgeons and OB/GYNs paid nearly $50,000 in Texas. General surgeons paid close to $90,000 and OB/GYNs in excess of $100,000 in Illinois. 78 APMA News May 2011 QUESTION: My question is about the effect that informed consent has on a malpractice suit. I have tried to follow all the rules and suggestions by having my patients sign an informed consent document ensuring that they understand what they are signing. I have listed the common items such as infection, numbness, reoccurrence, scarring, etc. Now let’s assume that a post-op infection occurs with some extended complications and the case results in a malpractice action. I have forewarned the patient that infection was possible and the patient has signed a consent form acknowledging that fact. Why does that not automatically free me from liability caused by an infection? ANSWER: A competent malpractice attorney will list several items in his or her plea, one of which always seems to be lack of informed consent. He or she can try to convince the jury that even though the patient signed the consent form, he or she was under duress and it was not really “informed consent.” Under the circumstances you cite in your question, the plaintiff’s attorney probably would not challenge the fact that the patient was warned that infection was a possible result. Rather, the attorney will build his or her case on the premise that once the problem occurred, the community standard of care was not met; thus, you were guilty of malpractice. At first glance, it seems reasonable that you would not be held accountable for a known risk. But the question in any malpractice lawsuit is not whether the injury suffered was a result of a known risk but whether a prudent doctor would have avoided the injury with reasonable care or managed the problem, once it occurred, in accordance with community standards. n Dr. Munsey can be reached at wfmunseydpm@ gmail.com.

Table of Contents for the Digital Edition of APMA News - May 2011

APMA News - May 2011
President’s Message
Contents
APMA Educational Foundation Annual Giving Campaign
91st House of Delegates: Focused on the Future
Roth: To Convert or Not to Convert?
Surgical Workshops at The National Offer Hands-on Instruction
Annual Scientific Meeting Preliminary Program
Annual Scientific Meeting Registration Form
Annual Scientific Meeting Sponsors
PICA and Podiatric Medicine: Family Ties Run Deep
Attaining Parity in California
Affordable Care Act, One Year Later: Part One
Reimbursement
Members Who Know Media
Technofile
Young Voices
Small Business 101
In Short
APMA Out and About
Worthy of Note
APMAPAC Update
Affiliates Corner
Insurance Advisor
Development Update
New and Deceased Members
2011 Call for Awards Nominations
Classified Advertising
Dates to Remember
Advertising Index

APMA News - May 2011