September 2014 Newsletter
Protect Patients Now

Volume 9, Issue 9 September 2014 Newsletter


Special points of interest:

Defensive Medicine Becoming the Rule Rather than the Exception
Editorial Review: Major California Newspapers Oppose Misdirected Liability Ballot Measure
Texas Supreme Court Continues to Validate State’s Liability Laws

Defensive Medicine Becoming the Rule Rather than the Exception

With meritless lawsuits on the minds of physicians and health care providers, care that is defensive in nature is becoming more commonplace in the exam room in hopes that it will keep physicians out of the court room.

A new survey of physicians at several hospitals in one Massachusetts health system, summarized in a recent edition of JAMA Internal Medicine, shows that a third of the orders that the surveyed physicians placed were defensive on some level.

The study found 28 percent of orders and 13 percent of costs were at least partially defensive across all of the care provided at three institutions within one health system. About 2.9 percent of costs were considered to be solely defensive in nature.

“Fear of frivolous lawsuits may be so pervasive that it has changed what is considered an acceptable diagnostic approach,” said Dr. Michael Rothberg, vice chair for research in the Medicine Institute of the Cleveland Clinic and lead author of the summary of the findings.

While demonstration projects authorized by the Affordable Care Act have achieved limited success in terms of reducing the number of claims and the time it takes to settle a claim, only comprehensive liability reform at the federal level will ensure that defensive medicine does not become the standard of care, driving up costs for patients across the country.

Click here to read more about the self-reported practice of defensive medicine by Massachusetts physicians.

Editorial Review: Major California Newspapers Oppose Misdirected Liability Ballot Measure

Earlier this month, the San Francisco Chronicle joined several other major newspapers in the state of California to oppose a misdirected attempt at increasing non-economic damage (pain and suffering) payouts and forcing families throughout the state to bear the burden of higher health care costs.

San Francisco Chronicle:
“This measure overreached in a decidedly cynical way. Its proponents have openly admitted that the provision for random alcohol and drug testing of doctors was added as a political sweetener…Voters should reject this flawed package.”


Sacramento Bee:
“Aware that some voters distrust lawyers, Consumer Watchdog added sweeteners to the initiative to obscure the initiative’s main point, that being to open the way for bigger awards in medical malpractice lawsuits… The initiative ought to fail.”


Monterey Herald:
“Proponents of the measure say that the cap should be adjusted for inflation, which would move it up to $1.1 million…But nonpartisan studies have shown that such a move up would have a damaging impact on already high health care costs. That’s why every attempt to raise the limit has gone nowhere in the state Legislature.”


Mixing together three unrelated initiatives into one, NoOn46 maintains that the ballot measure is “too complicated, too costly and too flawed.”

Click here to read up-to-date news and developments about the measure on the ballot in California this fall.

Texas Supreme Court Continues to Validate State’s Liability Laws

The latest challenge to Texas’s medical liability reforms was again upheld by the State’s Supreme Court, validating the integrity of the law and its success in protecting patients from medical lawsuit abuse.

While noting some differences between the most recent case and others in which it ruled, the court denied the plaintiff’s claim that the state’s laws violated both the “open courts” and “retroactivity” provisions within the Texas Constitution and upheld the statute of repose.

According to a summary by PIAA, the court stated on the first count that the law did not deny access to the courts because it was merely obligated to give “litigants a reasonable time to discover their injuries and file suit.” The decision of the court was that the plaintiff still had “a reasonable opportunity to be heard,” with a three-year window in which to file suit after the law was passed.

The court also ruled that because the law retroactively applied to an individual, it was constitutional if it served a “compelling public interest” and allowed for a grace period, in this case, the three-year-window, in which the claim may still be filed.

While the case is closed on this challenge, the courtroom door remains open for further challenges by personal injury attorneys under differing circumstances.

Click here to read the full opinion of the Texas State Supreme Court in support of the state’s medical liability reforms.