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Subject: DJP Update 12-29-2009: AMA – Amazing logic and view on medical liability reform

Subject: DJP Update 12-29-2009: AMA – Amazing logic and view on medical liability reform

DJP Update 12-29-2009: AMA – Amazing logic and view on medical liability reform

One of AMA’s Twitter postings of today, December 29, 2009:

AmerMedicalAssn
#AMAblog: How medical liability reform and Medicare’s SGR formula are addressed in Senate legislation. http://bit.ly/7WPVzD

http://bit.ly/7WPVzD

takes one to:

Blog: On the Road with Dr. Rohack

Excerpt from the AMA blog:

—–

“Over the weekend I received an e-mail from a long-time AMA member asking how he and his fellow members would benefit from health system reform legislation the Senate passed on Christmas Eve. In his e-mail, he wrote that he found no mention in the bill of two issues that are of particular concern to many physicians: medical liability reform and permanent repeal of Medicare’s SGR formula. I’d like to explain how both, which are among the AMA’s seven critical elements for reform, are addressed in the Senate bill.

“The Senate bill contains $50 million for medical liability reform funding for state pilots, and that is in addition to the $25 million President Obama already directed the Agency for Healthcare Research and Quality to provide in grants. The AMA has heard loudly from states that have caps on noneconomic damages—such as California and Texas—that they are opposed to any federalization of tort reform that puts their state reforms at risk. During the George W. Bush administration, when the majority in Congress was Republican, the starting bid for caps in the Senate was double that of California and Texas and was opposed. So scientific testing of alternatives to caps is valid and a move forward to reducing unnecessary costs of defensive medicine.”

——

Now let’s focus on this amazing statement from AMA:

“The AMA has heard loudly from states that have caps on noneconomic damages—such as California and Texas—that they are opposed to any federalization of tort reform that puts their state reforms at risk. During the George W. Bush administration, when the majority in Congress was Republican, the starting bid for caps in the Senate was double that of California and Texas and was opposed.”

DJP Comment: First, let’s assume the statement in “On the Road” is correct that California and Texas stately loudly that they are opposed to federal tort reform that puts there reforms at risk. That is nothing new and was and is AMA policy as indicated by the two policy statements below passed by the House of Delegates, the entity that makes AMA policy that the Board must follow. Now some fact checking.

When I was president in 2003-2004, that same concern was told to AMA and AMA worked to get Federal medical liability reform that was the California MICRA model AND also had wording that preserved state law that was as good. On July 9, 2003, I had the privilege to speak to the National Press Club about medical liability reform. The Gallup Poll showed 70% of the public was in favor of the AMA proposed reform. That California model with the $250,000 cap on non-economic damages had passed the House of Representatives and the vote in the Senate on Senate bill 11 containing the same provisions was to be on July 9, 2003 after my speech. Suddenly the vote in the Senate was called early and before my speech on medical liability reform started, the vote was taken. The Senators in favor of the medical liability reform had the majority vote. However, the Democrats did a filibuster and those in favor of the liability reform could not get 60 votes to obtain cloture and thus bring it to a simple majority vote for passage. The vote for cloture was around 57 and because 60 not reached the bill died in the Senate.

TECHNICAL DETAIL for DOCUMENTATION of STATEMENT ABOVE REGARDING PROTECTING STATE LAWS SUCH AS CALIFORNIA IS POSTED HERE FROM PAGES 23 & 24 OF SENATE BILL 11.

—— This Act does not preempt or supersede
25 any law that imposes greater protections (such as a short
er statute of limitations) for health care providers and
O:\BAI\BAI03.A84
24
S.L.C.
1 health care organizations from liability, loss, or damages
2 than those provided by this Act.
3 (c) STATE FLEXIBILITY.—No provision of this Act
4 shall be construed to preempt—
5 (1) any State law (whether effective before, on,
6 or after the date of the enactment of this Act) that
7 specifies a particular monetary amount of compen8
satory or punitive damages (or the total amount of
9 damages) that may be awarded in a health care law10
suit, regardless of whether such monetary amount is
11 greater or lesser than is provided for under this Act,
12 notwithstanding section 4(a); or
13 (2) any defense available to a party in a health
14 care lawsuit under any other provision of State or
15 Federal law.
16 SEC.

——

If AMA lost that bill’s wording, I have it on my computer’s hard drive.

Why rehash this history. Because of two reasons.

1- It is possible to advocate federal reform that is akin to the California law and still preserve the law in other states that have different but also effective laws. Also the federal tort reform would preempt state constitutions that prohibit caps on damages. One example of such a prohibition is Pennsylvania. I do not say it is easy to get passed today but one can’t go against AMA policy and one can’t give up!

2- The view of a couple of states does not dictate AMA policy. The California and Texas examples are valid concerns but that can’t be used to stop seeking federal reform akin to California. If AMA decides on what will be sought in Congress based on a state voicing opposition, then AMA would not have supported the House or the Senate bills on health system reform. Many states and specialties that sit in the AMA House of Delegates oppose those bills and have told AMA about the opposition. Yet the AMA Board continues on with their view of AMA policy, disregarding a group of doctors that now represent almost 500,000 physicians recorded in the Congressional Record. And yes, there are three former AMA presidents who are listed and who have written Op-Ed pieces stating AMA made a mistake supporting these bills. Forgive me, I keep repeating myself.

For some reason I keep getting flashbacks to the Ministry of Truth in the novel 1984. History continues to change depending on the circumstance. So one must ask the question, Are AMA proclamations an excuse or a reason? The excuse doesn’t fly with the majority of physicians and the reasoning is flawed.

AND PLEASE don’t tell the world that AMA has been advocating for the right to privately contract without penalty. The current bills forbid that and those who control the bills in Congress refused to allow that amendment for private contracting. Where are the AMA ads? We are at the point of “Trust but verify.” Sadly I think we wait like those Spartans at Thermopylae.

As stated by Simonides about the Spartans who died at Thermopylae:

xe‹n’, ¢ggšllein Lakedaimon…oij Óti tÍde
ke…meqa, to‹j ke…nwn ·»masi peiqÒmenoi.

Stranger, bring the message to the Spartans that here
we remain, obedient to their orders.

————

And our fate may be the same.

Reminder of the wording:

RESOLUTION 209 AMA INTERIM MEETING IN HOUSTON”
“RESOLVED, That our American Medical Association ensure the right of patients to choose their physician and enter into private contracts for services, without penalty to patients or physicians; and be it further…”

Final Note: I am getting letters everyday from doctors who inform me they have quit AMA. So sad. I tell all of them that AMA is a wonderful organization and they should not quit. Just as they don’t give up their American citizenship when Congress makes a mistake. The solution is to get Congress to fix the mistake or vote them out of office. Get people in office in Washington who will reason and pass bills based on the facts and not funny math or with provisions that remove our liberty.

As for AMA, don’t quit but show up at the AMA meeting and have people run for office from the floor. There are three candidates from the Board who are running for president-elect. Find someone else who is not on the Board to run for the position as board members all give evidence by their silence of being in lockstep with current AMA actions. Look for a smart (easy to find in HoD) articulate (easy to find in HoD) person with courage and who is willing to make the sacrifices of being in the minority and away from his or her practice. That person would advocate for the return of the patient-physician relationship without government control.

In other words, follow the advice of former AMA president, Dr. Bill Plested, “Let’s take back the profession!” Just the quest for that office by someone from the floor will send a message. There definitely will be a run-off with 4 candidates for the office and it could be the floor candidate would make the run-off. Then we will have a test of the courage and view of the AMA House of Delegates. The outcome might determine if AMA remains a membership organization. By the way, it would be wonderful to have the current paid membership numbers at the Annual June meeting of AMA. It is ridiculous to think those numbers will not be available until AFTER the meeting. With computer speed and databases, the current number should be available daily. Give the report of renewed members as of the meeting. Don’t give the excuse that there still is a grace period to renew. Give a running total. That is an important message.

As a disconfirming opinion giver, I suspect this DJP Update will warrant a lot of hugs as per the advice of the famous business school dean, Dr. Donald Jacobs, who said, “Hug the person who brings you a disconfirming opinion.” Let’s all seek the truth. Be not afraid to ask the tough questions. As Fredrick the Great said, “A man who seeks truth and loves it must be reckoned precious to any human society.”

When I hear some folks say the current Senate and House bills are good for America, I am reminded of Lewis Carroll’s “Though the Looking Glass” quote: Alice said, “One can’t believe impossible things.” The Queen responded, in part, “I daresay you haven’t had much practice,’ said the Queen. `When I was your age, I always did it for half-an-hour a day. Why, sometimes I’ve believed as many as six impossible things before breakfast.”

FOOTNOTES – AMA POLICY (By the way, federal medical liability reform is among AMA’s highest legislative priorities as stated and passed by the AMA House of Delegates!)

H-435.978 Federal Medical Liability Reform Our AMA: (1) supports federal legislative initiatives implementing the following medical liability reforms: (a) limitation of $250,000 or lower on recovery of non-economic damages; (b) the mandatory offset of collateral sources of plaintiff compensation; (c) decreasing sliding scale regulation of attorney contingency fees; and (d) periodic payment for future awards of damages; (2) reaffirms its support for the additional reforms identified in Report L (A-89) as appropriate for a federal reform vehicle. These are: (a) a certificate of merit requirement as a prelude to filing medical liability cases; and (b) basic medical expert witness criteria; (3) supports for any federal initiative incorporating provisions of this type would be expressly conditional. Under no circumstances would support for federal preemptive legislation be extended or maintained if it would undermine effective tort reform provisions already in place in the states or the ability of the states in the future to enact tort reform tailored to local needs. Federal preemptive legislation that endangers state-based reform will be actively opposed. Federal initiatives incorporating extended or ill-advised regulation of the practice of medicine also will not be supported. Effective medical liability reform, based on the California Medical Injury Compensation Reform Act (MICRA) model, is integral to health system reform. (BOT Rep. S, I-89; BOT Rep. I-93-53; Reaffirmed: BOT Rep. 8, I-98; Reaffirmation A-00; Reaffirmation I-03; Reaffirmed: Sub. Res. 910, I-03)

H-435.959 Liability Reform (1) Our AMA states that liability reform is our highest legislative priority; and (2) any federal liability reform legislation advocated by the AMA shall not preempt or supersede any law that imposes greater protections for health care providers and health care organizations from liability, loss, or damages than those provided by this legislation. (Sub. Res. 215, A-02; Reaffirmed: Sub. Res. 910, I-03; Reaffirmed: CME Rep. 2, I-05)

———-

Remember, one vote change in the Senate and a few in the House stop the impending train crash for American Medicine and our patients. Let’s get to work!

Stay well and Happy New Year!

Donald

P.S. Stop by http://twitter.com/djpNEWS and sign up for DJPNEWS to get tweet alerts that may not make it into DJP Updates.

Donald J. Palmisano, MD, JD
Intrepid Resources® / The Medical Risk Manager Company
5000 West Esplanade Ave., #432
Metairie, Louisiana USA 70006
504-455-5895 office
504-455-9392 fax
DJP@donaldpalmisano.com
www.donaldpalmisano.com
www.onleadership.us

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