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Discussing Medical Malpractice Reform

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1. When addressing med mal reform, Obama has said he will not consider capping malpractice awards as a measure of reducing the cost of health care. What stands to be gained or lost by capping malpractice awards insofar as its effect on the availability and quality of health care?
Many people believe that a cap on pain and suffering awards will lead to reduction in overall medical malpractice insurance costs to doctors, and those savings will transfer to overall healthcare costs. I have not read any studies that convince me this is true. Some states have had reforms that abandoned caps, and other states have seen caps work for a while but then the rates creep up again. Caps might be a component of reform, but they are not the total answer. Remember that caps only affect cases that are tried to conclusion. The majority of cases are settled before even going to court, so a cap would not have any definable impact. One potential positive is that caps could help make pain and suffering awards less arbitrary.
2. One alternative being considered is to have malpractice suits go under review by medical experts to review their credibility before they go to court. Do you think this could be a workable approach? And how workable? Would the number of cases that still make it to litigation present a large risk in terms of increasing the overall cost of health care?
I believe an expert review is very workable. In fact, we had it in New York State years ago.

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A three-person panel—a medical expert, a lawyer and, I believe, a judge—determined whether each case had merit. They would either rule that it had merit, that it did not have merit and should be discontinued, or made no finding. If there was no finding (no clear decision) the case would go forward as normal. However, if a case was found either to have merit or not have merit, the party in opposition to the ruling would have to pay the legal costs of the other side if they chose to go forward and lost. For example, if the panel ruled that a case did not have merit but the litigant chose to bring the suit to trial anyway and lost, they would have to pay the physician’s court costs, and vice versa. That is how it works in Great Britain.

The panels did three things:
1—They prevented bad lawsuits from being filed
2—They prevented bad suits from clogging the system, due to the financial risk
3—Their findings helped cases reach settlement more quickly and easily
I found the panels very productive in bringing about judicious, fair resolutions to cases. Unfortunately, they were discontinued due, I believe, to the backlog of cases that ended up stretching several years.
Again, the problem is not the number of cases that make it to court. It’s the number of suits that are filed, and the panel had a positive impact in reducing this number.

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3. Another approach is encouraging mediated arbitration rather than lawsuits to settle malpractice issues. How might such an approach work in an enforceable framework? Does the emotional nature of many malpractice suits really lend itself to arbitration?
We have arbitration right now in New York that is effective, because it is legally binding. I find that cases resolved through arbitration are very similar to results of cases that go through the tort system.
One of the most challenging issues in malpractice lawsuits is their emotional nature. Sometimes jurors have a tough time separating their very human sympathy from the facts of the case when a person’s pain and suffering is very real, but is NOT the result of physician error.
4. Medical malpractice is often the focus of health care cost reform because it’s an easy target that people have strong opinions about. But in the grand scheme of things, in terms of truly overhauling how health care is provided and delivered to the public, is the matter of malpractice litigation a primary challenge to overcome?
We really don’t know how much medical malpractice—and the fear of malpractice lawsuits—contributes to overall healthcare costs. The thrust of medical malpractice reform should be to make sure anyone injured can be compensated fairly, and at the same time ensure that doctors are not overpaying. If it is shown that fear of medical malpractice lawsuits leads to costly, unwarranted procedures, and that reforms can limit this practice while still ensuring patient safety and quality of care, then any reforms should contribute to a reduction in healthcare costs.
5. Many critics of a national health care plan note that a 50-state approach would provide for many different “laboratories” in which different solutions can be devised. What particular successes have you experienced in NY state that might speak to the notion of a 50-state solution?
This is really the current approach: each state is developing its own solutions. I believe that the states should learn from each other but, because every state’s laws are unique, you can’t just apply what works in one state to another and expect the same outcome.

The ongoing health care debate will affect every company in the country. Health care costs will continue to have sizable impacts on bottom lines and every employee. Given all the political showmanship and partisan posturing on both sides of the aisle, however, it can be difficult to get a clear look at the many issues that comprise the overall health care system.

To add a little clarity to how medical malpractice reform fits into this whole picture, I reached out to Anthony J. Bonomo, CEO of  Physicians’ Reciprocal Insurers, by email with a few questions.

Below is our exchange.

RMM: When addressing med mal reform, President Obama has said that he will not consider capping malpractice awards as a measure of reducing the cost of health care.

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What stands to be gained or lost by capping malpractice awards insofar as it affects the availability and quality of health care?

Bonomo: Many people believe that a cap on pain and suffering awards will lead to reduction in overall medical malpractice insurance costs to doctors, and those savings will transfer to overall health care costs. I have not read any studies that convince me this is true. Some states have had reforms that abandoned caps, and other states have seen caps work for a while but then the rates creep up again. Caps might be a component of reform, but they are not the total answer. Remember that caps only affect cases that are tried to conclusion. The majority of cases are settled before even going to court, so a cap would not have any definable impact. One potential positive is that caps could help make pain and suffering awards less arbitrary.

RMM: One alternative being considered is to have malpractice suits go under review by medical experts to review their credibility before they go to court. Do you think this could be a workable approach? And how workable? Would the number of cases that still make it to litigation present a large risk in terms of increasing the overall cost of health care?

Bonomo: I believe an expert review is very workable. In fact, we had it in New York state years ago. A three-person panel—a medical expert, a lawyer and, I believe, a judge—determined whether each case had merit. They would either rule that it had merit, rule that it did not have merit and should be discontinued, or make no finding. If there was no finding (no clear decision) the case would go forward as normal. However, if a case was found either to have merit or not have merit, the party in opposition to the ruling would have to pay the legal costs of the other side if they chose to go forward and lost. For example, if the panel ruled that a case did not have merit but the litigant chose to bring the suit to trial anyway and lost, they would have to pay the physician’s court costs, and vice versa. That is how it works in Great Britain.

The panels did three things: 1. They prevented bad lawsuits from being filed. 2. They prevented bad suits from clogging the system, due to the financial risk. 3. Their findings helped cases reach settlement more quickly and easily

I found the panels to be very productive in bringing about judicious, fair resolutions to cases. Unfortunately, they were discontinued due to, I believe, the backlog of cases that ended up stretching several years. Again, the problem is not the number of cases that make it to court. It’s the number of suits that are filed, and the panel had a positive impact in reducing this number.

RMM: Another approach is encouraging mediated arbitration rather than lawsuits to settle malpractice issues. How might such an approach work in an enforceable framework? Does the emotional nature of many malpractice suits really lend itself to arbitration?

Bonomo: We have arbitration right now in New York that is effective, because it is legally binding. I find that cases resolved through arbitration are very similar to the results of cases that go through the tort system.

One of the most challenging issues in malpractice lawsuits is their emotional nature. Sometimes jurors have a tough time separating their very human sympathy from the facts of the case when a person’s pain and suffering is very real, but is not the result of physician error.

RMM: Medical malpractice is often the focus of health care cost reform because it’s an easy target that people have strong opinions about. But in the grand scheme of things, in terms of truly overhauling how health care is provided and delivered to the public, is the matter of malpractice litigation a primary challenge to overcome?

Bonomo: We really don’t know how much medical malpractice—and the fear of malpractice lawsuits—contributes to overall health care costs. The thrust of medical malpractice reform should be to make sure anyone injured can be compensated fairly, and at the same time ensure that doctors are not overpaying. If it is shown that fear of medical malpractice lawsuits leads to costly, unwarranted procedures, and that reforms can limit this practice while still ensuring patient safety and quality of care, then any reforms should contribute to a reduction in health care costs.

RMM: Many critics of a national health care plan note that a 50-state approach would provide for many different “laboratories” in which different solutions can be devised. What particular successes have you experienced in New York state that might speak to the notion of a 50-state solution?

Bonomo: This is really the current approach: each state is developing its own solutions. I believe that the states should learn from each other but, because every state’s laws are unique, you can’t just apply what works in one state to another and expect the same outcome.

One President, One Rapper, One Reporter and One “Jackass” Show the Need for Social Media Policies

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In what has proven to be a rather timely development given our ongoing discussion of how risk management may intersect with social media, yesterday an ABC employee “tweeted” (i.e., sent a message on Twitter) indicating that President Obama called hip hop producer and rapper Kanye West a “jackass” while the Commander in Chief was having a casual, off-the-record conversation about the for the stunt Kanye pulled (reportedly while drunk) at the MTV Video Music Award show on Sunday.

For the uninitiated, known-eccentric Kanye West jumped up on stage after country recording artist Taylor Swift won the award for Best Female Video and took the microphone away from her so he could voice his opinion that his friend Beyoncé should have won since she had “created one of the best videos of all time.”

By all accounts — even one from Mr. West himself last night on the premiere of the new Jay Leno show — Kanye acted like a jackass. So the fact that Obama said so is not the issue that’s relevant here (or, anywhere, in my opinion).

The issue relevant to social media is that the ABC employee tweeted an off-the-record comment, which led to it later having to be deleted and ABC having to issue a formal apology. Still, the whole incident surrounded a highly innocuous comment about a silly pop culture event so, ultimately, all of this comes down to is “no harm, no foul.” In and of itself, this particular event is not significant.

But it does show how one momentary lapse in judgement can lead to something that could be a potentially large issue.

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What if a reporter erroneously quotes someone in social media? What if they write something too quickly that turns out not to be just “off the record” but actually incorrect? Sports Illustrated did just that before sending out this erroneous announcement that Roger Federer won the US Open. Again, this wasn’t a particularly serious issue, so it’s not a big deal — only slightly embarrassing for SI.

But what if the comment is libelous? What if someone announced something that they overheard at a dinner party about a much more contentious issue like, say, the Valerie Plame fiasco? As a rule, a journalist needs at least two sources confirming something as fact before they publish, but even a generally professional journalist could slip up and “publish” something erroneously on Twitter. That could very likely lead to a lawsuit.

Much like the ESPN post from the other day, this post again deals with the media’s use of social media. Indeed, a lot of the discussion of Web 2.0 issues surrounds the traditional media simply because sites like ABC and ESPN have embraced it earlier and more vigorously than the average Fortune 500 company. But, as our upcoming October feature on social media points out, whether or not a company itself has actually embraced social media matters little. Undoubtedly, some of its employees have.

So what happens when some “Senior Director of GE” is attending a corporate party and, after a few too many glasses of wine, says something on FaceBook or Twitter like “Looks like our CEO is drinking scotch and hitting on his assistant again”? Maybe nothing. But maybe someone influential sees this and passes it on to someone else and, before you know it, headlines like “Drunk Jeffrey Immelt Hits on Secretaries” pop up on various business blogs.

A lot of critics who think ESPN has overreacted with its social networking policy feel that the company’s parent, Disney (who just so happens to also own ABC), is trying to censor reporting. But a good social media policy isn’t about censorship. It’s simply a reminder to let employees know that what they say digitally is public and will not just be seen by their friends — it could potentially be seen by anybody. A lot of people still don’t understand that. So it’s really just a reminder and a way to educate your employees on common sense.

And this isn’t anything new.

Every year before the RIMS Conference, we have a pre-conference meeting where we go over all the many details of the event with a fine-tooth comb. Mainly, we go over things like who needs to be where when and which hotels everyone is staying at and who to contact if there is a problem with a presentation projector. Innocuous stuff. But there is also a reminder to all the staff that, for the duration of the conference, we are representing RIMS. If we happen to be invited to an Aon dinner event where wine and beer will be served, we are expected to continue being professional and not doing anything that would make RIMS look bad.

That message is really just common sense.

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It’s the same “Don’t do anything that you wouldn’t want to see on the cover of the Wall Street Journal” advice that people have been preaching for decades, with maybe the extra caveat of “and don’t write anything…” as well.

But a lot of people don’t think about this simple concept in the context of social media until it is actually told to them. That’s why social media policies can be valuable. Many people see social media sites like Twitter as the equivalent of an “after work party” where clearly restricted behaviors are allowed. In the article, I think I refer to it as “people treating it like the break room” or the water cooler. People do and say things in social media that they normally wouldn’t if they thought someone was watching or if they thought there was an expectation of professionalism.

A social media policy, no matter the details that each individual company writes down, is in essence no more than an official reminder that you need to be professional as an employee at all times, both in the office and when you’re talking about anything work-related on the internet. It’s all about education.

Moving on…

In related news, I recently learned about a free 3D Virtual Event on Social Media 101 presented by Digitell Inc. I’ve never attended anything they have put on before and am not sure what the 3D part means so I can’t vouche for its overall quality, but it’s only an hour long and should help anyone unfamiliar with the core social media concepts get up to speed.

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Plus, the guy giving the class has one of the more intriguing bios I’ve read recently.

Growing up in New Zealand surrounded by 60 million sheep Mike learned a thing or two about standing out in a crowd (human or on four legs!). He also learned that by simply following the flock you end up getting eaten! In his later travels to (live and work in) Australia he learned that a dead kangaroo on the side of the road will attract a lot of flies, but doesn’t get to benefit from all that attention … With his experience working on three continents and a wealth of knowledge in mass communications, social media, marketing, new product development and customer service Mike loves to use his knowledge to help others. His only requirement is that everyone have funalong the way – because life is just too short to do otherwise.

Those of you without a full hour to kill may want to just read this article called “Understanding the Users of Social Media” from the Harvard Business School instead. (Or, if you don’t even have time for a full article, just check here for the main findings of Harvard professor Mikolaj Jan Piskorski’s research.)

Here’s the main point of the article.

If the ongoing social networking revolution has you scratching your head and asking, “Why do people spend time on this?” and “How can my company benefit from the social network revolution?” you’ve got a lot in common with Harvard Business School professor Mikolaj Jan Piskorski.

Only difference: Piskorski has spent years studying users of online social networks (SN) and has developed surprising findings about the needs that they fulfill, how men and women use these services differently, and how Twitter—the newest kid on the block—is sharply different from forerunners such as Facebook and MySpace. He has also applied many of the insights to help companies develop strategies for leveraging these various online entities for profit.

Lastly, I had this chart emailed to me recently, which shows that even many media companies have still not begun embracing social media. Whether this is due to fear, unfamiliarity or disinterest, I’m not sure. (It’s probably a combo of the three with the last two being much more significant.) But it is yet another interesting graph I’ve received in my inbox from Silicon Alley Insider’s “Chart of the Day” mailing list.

If you’re interested in random visual factoids, it may be worth signing up for.

rowing up in New Zealand surrounded by 60 million sheep Mike learned a thing or two about standing out in a crowd (human or on four legs!). He also learned that by simply following the flock you end up getting eaten!
In his later travels to (live and work in) Australia he learned that a dead kangaroo on the side of the road will attract a lot of flies, but doesn’t get to benefit from all that attention.
While working and traveling in Europe Mike saw how determined people would eventually break down a symbolic wall holding back ideas.
And since arriving in the United States Mike has learned that talking funny and thinking differently can be both a blessing and a curse…so he works hard at making it a blessing!
His broad general knowledge means no one ever wants to play Trivial Pursuit with him, but it also means he enjoys connecting random thoughts to solve problems…big and small.
With his experience working on three continents and a wealth of knowledge in mass communications, social media, marketing, new product development and customer service Mike loves to use his knowledge to help others. His only requirement is that everyone have funalong the way – because life is just too short to do otherwise

After the Fall: One Year Later, Still No Regulations

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President Obama gave a speech on Wall Street today that sent a strong message: We must learn from last year’s financial collapse and improve our national regulatory system to fix its underlying weaknesses.

“Instead of learning the lessons of Lehman and the crisis from which we are still recovering, they are choosing to ignore them,” Mr. Obama said in a speech at Federal Hall in Lower Manhattan.

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“They do so not just at their own peril, but at our nation’s … I want everybody here to hear my words. We will not go back to the days of reckless behavior and unchecked excess at the heart of this crisis, where too many were motivated only by the appetite for quick kills and bloated bonuses.

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Those on Wall Street cannot resume taking risks without regard for consequences, and expect that next time, American taxpayers will be there to break their fall.”

These are the strongest statements I have heard from the president on how better risk management — internally at banks, systematically from the regulators and philosophically from those working on Wall Street — must be embraced. With Obama using so much of his political capital and “mandate for change” on health care (albeit with little progress), it remains to be seen if he will be able to spur Congress to enact any progress on reforming the financial industry. The White House certainly hasn’t been able to get Capitol Hill to do much thus far.

From the Wall Street Journal:

Mr. Obama’s planned overhaul would dramatically rewrite the rules of the road for the U.S. financial sector, with new protections for consumers and safeguards against the potential collapse of more big banks. But it is unclear if Congress can unite behind a revamp on Mr. Obama’s timetable, given the time-consuming debate over health care and disagreements between lawmakers on the major components of the overhaul.

The Atlantic ran its piece today to mark the anniversary of the collapse, looking at “5 Reasons to Worry.” In their first reason, they warn against the fact that “in the U.S. and many other countries, the too-big-to-fail banks have become even bigger,” according to Joseph Stiglitz, a Nobel-winning economist and the former chief economist at the World Bank. Among the other four reasons to worry are: continued federal subsidies, unchecked greed and unregulated derivatives.

Those in the risk management industry are unfortunately accustomed to having their advice ignored. Twelve months after the largest collective failure of financial risk management to occur in my lifetime, however, it remains shocking that so little has been done to fix the problem.
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Major Cyber Attacks Hit Government Agencies

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American and South Korean government agency websites have been attacked by, what some may call, cyberterrorists. The sites have been mostly inoperable since the attacks began during the July 4th holiday weekend.

Access to at least 11 major Web sites in South Korea — including those of the presidential Blue House, the Defense Ministry, the National Assembly, Shinhan Bank, the mass-circulation daily newspaper Chosun Ilbo and the top Internet portal Naver.com — have crashed or slowed down to a crawl since Tuesday evening, according to the government’s Korea Information Security Agency.

Major U.S. websites were also targeted, including those of the White House, Pentagon and the New York Stock Exchange. The National Intelligence Service feels confident that the attacks were executed not by an individual, but by a “specific organization or on a state level.

The South Korean news agency, Yonhap, has reported that the National Intelligence Service believes North Korea or pro-North Korean groups are responsible.

This high-level attack is reminiscent of the cyber warfare reportedly enacted by Russia towards Georgia just one year ago. Corresponding with Russia’s ground war, the country also launched attacks on websites of Georgia’s president, the Ministry of Foreign Affairs and the Ministry of Defense, adding to the country’s chaos.

The attacks will be difficult to trace, said Professor Peter Sommer, an expert on cyberterrorism at the London School of Economics. “Even if you are right about the fact of being attacked, initial diagnoses are often wrong,” he said Wednesday.

The fact that cyber attacks are so difficult to trace gives attackers the confidence to continue their crimes of cyber warfare on a prolific level — all at the expense of confidential personal information and even classified government records.

Will the Obama Administration’s multi-billion dollar cyber security project be strong enough to stop such sophisticated hackers?