Mercy Medical and Aultman Hospital are currently suing the pants off of each other in a big local lawsuit. Mercy claims that Aultman illegally set up a scheme to pay local insurance agents secret bonuses to steer businesses and individuals to buy AultCare Insurance, which is apparently owned by Aultman. Mercy claims that this secret kickback scheme created a "monopoly" that cut into Mercy's market share of potential patients, and therefore its bottom line.

Aultman has fired back, countersuing Mercy for corporate slander, defamation, "unfair trade practices," and has labeled Mercy's claims "extortion."

Who knows who's right or wrong in this one. But here's where a HUGE spotlight of hypocrisy shines on these lawsuits. First, these hospitals can sue each other for MILLIONS, and there are NO CAPS OR LIMITS on what they can recover from a jury. For example, if a jury returns a verdict for Mercy or Aultman for $50 million, that's what either hospital can potentially recover. No problem with that: if that is what a local jury concludes, and the evidence supports the verdict, that is why we have a constitutional right to trial by jury.

However, if either hospital injures YOU after a negligent medical error, and you bring a lawsuit, your pain and suffering is reduced to $250,000 for life, even if a jury values your misery at $300,000, or $3 million. Why? Because the "tort reform" laws that limit compensation APPLY ONLY TO YOU. All those caps and limits do not apply to business lawsuits like this one. So, tort reform is a one way street--it limits THE AMOUNT OF MONEY YOU CAN RECOVER BUT NOT THE AMOUNT BUSINESSES LIKE HOSPITALS CAN RECOVER.

Second, hospitals like Aultman lobbied heavily for tort and medical liability "reforms" before The Ohio Legislature passed them in 2003. Below is a quote from testimony Aultman Health Foundation VP Tim Teynor gave to The Ohio Legislature:

Employers more than ever need to be free to offer flexible health benefit systems. We must be careful to avoid increasing the cost burden on employers and employees due to new coverage mandates and increased liability.

From a providers point of view, the legislature could help restrain rising medical costs by passing several pending tort reform bills, including:

• Senate bill 120 - would make liability proportional to a defendant's degree or fault or responsibility.
• Senate bill 179 - would modernize ohio's peer review statute.
• Senate bill 281 - would cap non-economic damages for pain and suffering in malpractice lawsuits.

(To read Mr.Teynor's full testimony, go to http://www.ohiochamber.com/governmental/testimony_Teynor.asp).

If capping YOUR compensation after a preventable hospital error is supposed to keep health care and insurance costs down, what do you think a multimillion dollar lawsuit and hospital legal wars over insurance market share does to health care costs? Does it bring the cost of health care down?

Perhaps now you know why I used the term "hypocrisy" in the title of this post. See how these reforms work? In the name of holding down health care costs, your rights are limited, but when it comes to businesses like hospitals hiring armies of lawyers to sue each other for millions, there are no limits. Just another example of average citizens not getting a level playing field when it comes to making businesses like hospitals accountable for their mistakes. And make no mistake about it, this lawsuit proves that running a hospital and churning patients is all business.......

(Visit our website at www.n-wlaw.com)

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You may THINK you have a “full coverage” auto policy to protect all your losses if you’re involved in a crash. After all, that's what you were told when you bought your policy. Chances are you don’t. I would estimate that over 90% of people who have auto insurance in Ohio are SERIOUSLY underinsured and exposed to huge monetary losses if involved in a crash. In fact, your auto policy may be so lousy that you may have NO COVERAGE AT ALL AFTER A CRASH THAT IS NOT YOUR FAULT.

We have seen it happen over and over again after over 20 years of representing people injured in crashes. So I decided to do something about it and wrote a book: “How To Buy Car Insurance In Ohio To Protect You And Your Family.” In the book I explain the 2 MAJOR REASONS why you probably have a lousy auto policy, and what you can do about it NOW to protect yourself ( Hint: the details are in the fine print in your policy that nobody but we attorneys bother to read AND Ohio law that stacks the deck against you without you even knowing it until it's too late....)

The good news is'(1) there is something you can do TODAY to protect your family; (2) the book's a short read; (3) it’s FREE and (4) it may also double as a cure for insomnia, but did I also mention it’s FREE?

Just e-mail me at brian@n-wlaw.com or call us at 330-452-8831 and we’ll send it out.

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You may have heard of the term "tort reform." Generally, it refers to law changes sought by insurance companies and big business. This movement has been around for over 30 years, but it has accelerated greatly over the last 10-15 years both nationally and here in Ohio. These special interests have spent MILLIONS on radio, TV and newspaper ads, and lobbyists pushing for these "reforms." Here's the bait upon which tort reform is sold to the public: by cracking down on "frivolous lawsuits" and "runaway juries," this will protect businesses, which will be good for the economy, and hold insurance costs down.

Now here's the switch: while decrying "frivolous lawsuits," insurance companies then lobby to pass laws that impose arbitrary, one size fits all caps on even LEGITIMATE CASES OF SERIOUS INJURY. Here's how these caps work in Ohio: if you lose a limb or are rendered comatose due to a preventable medical mistake, for example, and a jury values your next 40-50-60 years of misery at $1 million, it is arbitrary reduced by law to $250,000.

What does limiting legitimate injuries have to do with cracking down on frivolous lawsuits? Nothing, of course. But that hasn't stopped the insurance industry from convincing the Ohio Legislature to pass limits on what seriously injured Ohioans can recover.

At the end of the day, the "tort reform" movement is alot like people who want politicians to "crack down on crime" by building more prisons. Sounds great from a distance, until you realize the prison is going in YOUR neighborhood. Suddenly, the situation is "different" or "unfair."

BUT.........if you STILL believe that arbitrary limits on what anyone can recover for serious and legitimate injuries is a good idea, you are probably a true "tort reformer." And if you are, you should print and sign the form below and take it with you whenever you need treatment from your doctor or hospital. That way, everyone will know that you're not going to get involved in our legal system as someone who "sues," and that you're willing to place blind trust in whomever you deal with.

(visit our website at www.n-wlaw.com


MEDICAL AUTHORIZATION AND CONSENT TO TORT REFORM


(Bringing Ohio Patients and Doctors Together To Fight the High Cost of Medical Care)**

Warning: Tort Reform affects your rights! Please do not sign this form unless you have had a face-to-face discussion with your doctor about tort reform.


Dear Dr. , I understand that I (or my child ) will shortly be undergoing the following medical care with you:

(Surgery Anesthesia Important medical exam/treatment)

On behalf of me and/or my minor child, I agree as follows:

It’s a Good Idea to Limit My Recovery in Medical Malpractice Cases

Like you, I am worried about the high cost of health care. Although I never really thought about it before, I think that it’s a really good idea that if you negligently injure me or my child for life, my opportunity to recover damages from your insurance company should be limited. After all, my limited recovery because of your negligence will keep malpractice insurance premiums low, and insurance companies will pass these savings on to all of us, and surely this will bring down health care costs for all Ohioans. I’m glad I’m sacrificing my rights to compensation for the good of all Ohioans, and I can’t wait for health insurance costs and doctors’ fees to be dramatically reduced real soon in Ohio because of all these savings.

Ohio’s Current Laws Do Limit Damages—But It’s Not Enough

In Ohio, we already have laws which limit my recovery from your insurance company. Nevertheless, I am agreeing to “cap” my recovery at $250,000 for pain and suffering damages.

You (the doctor) Can Sue Me For Everything—That’s OK

On the other hand, if I cripple you on the highway with my car, you can sue me and recover for all of your medical bills, lost wages, and pain and suffering, without limit. This seems to treat you better than me but I am willing to sacrifice my family’s well-being for yours.

I’ll Have to Pay Back What I Get from You to My Own Insurance Company

You have also explained to me that my own health insurance plan will want me to deduct from my recovery, and send to it, 100% of the medical bills it paid for my injury. I also understand that if the reason you are treating me is for a work related injury that my worker’s compensation insurance company will have a claim for all of the money it spends for my medical care and lost wages. What these insurance companies are owed will be deducted from my recovery against you. Once again, my limited recovery because of your negligence will mean lower health insurance costs that will be passed on to all Ohioans, which should be coming real soon.

I Want to Agree to These New Laws And Any Others The Ohio Legislature Might Pass Right Now!

I realize that you may want even more reforms that limit or even eliminate my right to bring a claim against you for negligence, so I am willing, in order to make it more affordable for your medical practice, to AGREE IN ADVANCE to any future proposed restrictions apply to my case. After all, we all need to pitch in to bring your rates down, which will be passed along to me in the form of lower health care costs.

So, in order to help you and your business I hereby solemnly agree if you hurt me or my child then:
• That even if I or my child are crippled, disfigured, blinded or in chronic severe pain for the rest of my/our life that the most you will have to pay for the pain, suffering, humiliation and embarrassment is $250,000.
• That out of any recovery from you I may have to pay back to my own health insurance or disability insurance company everything they paid because of my injury.
• That if I can't make ends meet because of any caps, I will simply go on government assistance.

Secrecy Agreement

I hereby agree in advance, that if you hurt me or my child and we settle my claim, we will keep the claim and the settlement secret so that no one else will find out that your malpractice insurance company has settled my case. I also agree, as is required in most settlement agreements, that I will pay you back a large portion of the settlement if word leaks out that your insurance company paid me.

______________________________________Date___________________________
Patient name (or parent if patient is a child)

______________________________________
Doctor’s Name: By signing this form the doctor promises that he/she has had an open and honest discussion with the patient about tort reform and has disclosed to the patient all prior claims paid by or on behalf of the doctor for medical malpractice. The doctor has also disclosed all pending claims so that the patient can make an informed choice about who to trust his/her life to.

**This form is authorized to be used by any doctor and any patient in Ohio. It is designed so that health care providers can have an honest discussion with their patients (and parents of child patients) about the impact of tort reform on patient care. It is also designed so that those who can’t wait for more tort reform to pass on a national or statewide basis can go ahead and enter into a private contract with their doctor for an upcoming treatment or surgery. It is hoped that if a doctor can get every patient to agree to this that maybe the doctor can get a better rate on his insurance and thus whatever the patient ends up paying for out of his pocket for injury can be passed along as a savings to the rest of society in terms of lower cost of medical care.

(Credit for the idea behind the form goes to Virginia attorney Ben Glass....)

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We attorneys who use our due diligence to weed out and turn down potential complaints or lawsuits not worthy of pursuing are often appalled when we hear of a goofball lawsuit that rears its ugly head in the media. Why? Because it simply fuels the fire for insurance companies and business groups who try to paint our civil justice system as bombarded with scads of "frivolous cases" while pushing for "reforms" that limit legitimate cases under the camouflage of cracking down on frivolous lawsuits (see previous post "Are You A True Tort Refomer?"). Using the occasional frivolous lawsuit as a poster child for "what's wrong with our justice system," the insurance industry has been highly successful in actually limiting what people can recover for legitimate and serious injuries.

A recent Ohio case, however, shows what we have known for years, and what the public is unaware of: that Ohio, like all states, has had laws on the books for over 20 years that fine attorneys and/or litigants who pursue frivolous cases. In this case, a motel patron was levied a late charge of $46 for a late checkout. Not happy with the charge, he sued PRO SE (meaning on his own without an attorney) and asked for $750,000 and free lodging for life.

This crazy lawsuit was quickly tossed out of court as meritless. But when the patron appealled to the Court of Appeals, the Court correctly took the case one step further: it made the patron pay $2,500 in legal fees the motel owners had to expend in defending the lawsuit. As Judge Painter correctly noted: "Fortunately, this Court has few frivolous cases. But we know one when we see one."

Lessons learned:

1. Ohio has strong laws in place to deal with stupid lawsuits like these. And nobody cringes more than us when we read about garbage like this, because it feeds into the misperception the public has about our justice system. And when we're all painted with the same "frivolous lawsuit" brush, it makes it harder for us to pursue legitimate cases for our clients.

2. These crazy lawsuits are rare, and are usually filed by individuals themselves pro se, without an attorney being involved.

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Unfortunately, we who handle malpractice cases are often seen as antagonists or enemies by physicians. In all honesty, however, we probably have more in common than we both realize. First, physicians deserve to make as much money in our free market system as their competence and expertise will allow. Right now, physician reimbursement rates from insurance companies and the government (Medicare, for example) are declining steadily, and this is wrong. In fact, under curent federal law, reimbursement rates for Medicare patients will decline by 10.6% in July, 2008, and another 5% in 2009.

There was a bill pending in the U.S. Senate (S 3101) that would have provided for increased reimbursement rates for doctors who treat Medicare patients, but it fell 6 votes shy of passing. Senator Brown voted for the bill and Senator Voinivich voted against it. If the reimbursement rates continue to decline, doctors may find it difficult or impossible to continue to treat Medicare patients.

One thing you can do is call Sen. Voinivich's office and tell him to support S. 3101.

Secondly, medical malpractice insurance companies were gouging physicians 5-7 years ago by raising malpractice rates by over 100% for some specialties. Of course, the insurance industry blamed rate increases entirely on lawsuits and "trial lawyers," and a massive "campaign" was launched to seek legal reforms with the promise that rates would fall again if reforms were passed. The reforms were passed, but physicians' malpractice premium rates have not dramatically decreased at the same rate in which they rose.

We said all along that physicians were being wrongly fleeced by their own insurance companies because of stock market losses, but this fell on deaf ears. Ideally, it would have been nice to join forces with physicians and expose the accounting and financial shenanigans of the malpractice insurance companies, but because the malpractice insurance-physician relationship is similar to a pre-arranged marriage, it was more convienient to paint trial lawyers as the culprits.

Nevertheless, it is our belief that physicians deserve to be well compensated for all the good work that they do, but should also be accountable like everybody else when preventable mistakes harm patients.

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I think it was Einstein who once said: "Insanity is doing the same thing over and over again and expecting different results." After years of what I call "the 3 D's-- deny, dodge, and defend"--the medical profession is finally learning all the benefits of saying "I'm sorry" to patients injured by preventable medical mistakes.

A recent New York Times article (click on the title of this post to read) highlights how a culture of admitting preventable medical mistakes, coupled with a sincere apology and an offer to compensate victims, has reduced lawsuits and litigation costs dramatically for medical institutions that have adpoted this policy.

Frequently, clients come to us after a medical tragedy with no idea why their loved one died or was harmed. Why? Because none of the providers undertook responsibility for explaining what truly happened or were sufficiently vague in explaining what transpired that it raised the malpractice index of suspicion.
Medical providers and hospitals have been slow to realize that a culture of honesty and decency after a medical error is infinitely superior to stony silence in staving off potential lawsuits. Again, from the patients' perspective, they're dealing with a tragedy of epic proportions. Yet, many times, they get no real explanation as to what happened. It is a shame when it takes a team of lawyers and experts to read between the lines of intentionally vague medical records to explain to the client what really happened in the OR or the ICU months ago. Sadly, many of our malpractice investigations begin in that manner.

The recent passage of "I'm Sorry" legislation, which permits providers to apologize to patients without fear of it being used against them in court, puts into law what we have known anecdotally for years: that simple honesty goes a long way towards curbing malpractice suits, legislation or no legislation.

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