DJP Update 9-28-2006 - Medical Liability Court Decisions in Louisiana 
and Florida; Lagniappe
To: DJP  Nationwide Megalist and Beyond

ITEM ONE: Louisiana Third Circuit Court of Appeal rules cap on  damages in medical malpractice cases unconstitutional

Louisiana has had a medical malpractice cap on damages since 1975.   The $500,000 cap includes all damages except medical damages.  The 
future medical damages are paid as incurred.  There is no lump sum  payment of estimated future medical damages.

The Louisiana cap is known as Act 817 of 1975 as modified in the  mid-80's when future medical payments as incurred were added into the  law.

The Louisiana Supreme Court previously upheld the cap in the Butler  case in 1992.  Cite is Butler v. Flint Goodrich Hosp., 607 So.2d 517 
(La.1992).

New development:
On September 27, 2006, the Louisiana Third Circuit Court of Appeal  declared the Louisiana medical malpractice cap unconstitutional.
The case is Susan Arrington, Etc. Versus ER Physicians Group, APMC, 
Et Al.

Majority Opinion:
http://www.la3circuit.org/opinions/2006/09/092706/04-1235opi.pdf

Concurring:
  http://www.la3circuit.org/opinions/2006/09/092706/04-1235bhecon.pdf

Dissent:
http://www.la3circuit.org/opinions/2006/09/092706/04-1235srcdis.pdf

Comments:
I reviewed this decision and in my opinion it is not the correct  decision.  Also noted in the opinion are such statements as "There is  no evidence that the caps on medical malpractice lawsuits translate  into lower malpractice insurance premiums.", and ..."malpractice  liability reform would have little or no effect on health care costs  because malpractice liability insurance premiums amount to less than  one percent (1%) of total health care costs in the U.S. (Court cited the Congressional Budget Office on the 1% figure.)  These arguments used by the court have been rebuked in the past in 
many debates.  One merely has to go to Texas and see the dramatic  effect on premiums by a cap on damages.  Changing the constitution to 
say that a cap is OK, as Texas did with Proposition 12 allows the  drop in premiums to occur immediately.  For research showing the  effects on caps for access to care as well as insurance premiums, go  to AMA web site and review the documents there.  Go to:

http://www.ama-assn.org/ama/pub/category/7861.html

Be certain to use read Medical Liability reform - NOW! found at:

http://www.ama-assn.org/ama1/pub/upload/mm/-1/mlrnow.pdf

Also, read the writings of Dr. Richard Anderson of The Doctors 
Company at:
http://www.thedoctors.com/reference/andersonlinks.asp
He is a fierce warrior for medical liability reform and he has the 
facts!

Remember that the Louisiana Third Circuit Court of Appeal case will  be decided by the Louisiana Supreme Court in all likelihood.  In the meantime, it is not binding on the other circuits in  Louisiana.  The Third Circuit Court of Appeals coverage includes  Lafayette, Lake Charles, and Alexandria.

ITEM TWO: Florida Supreme Court September 28,2006 ruling and Florida  Medical Association response:
The news item: Florida Supreme Court allows trial lawyers to use a  legal waiver which allows attorneys to earn larger fees than current  law dictates and provides less dollars for the patients and families  who have suffered in a medical liability case.  Current Florida law  allows plaintiff attorneys 30% of the first $250,000 of a recovery,  and 10% of all amounts recovered over $250,000.

FMA responses with an analysis and a patient waiver and cites a  survey by The Doctors Company demonstrating the negative effect of  the medical liability crisis.  Go to:
http://www.fmaonline.org/news/patientwaiver.pdf

DJP reflections:
In a TV debate with a plaintiff attorney regarding medical liability  reform in 1975 when Louisiana was debating the medical liability cap and other reforms, I made the point on a local New Orleans Meet the Press show:

Imagine if medical ethics = legal ethics

A plaintiff attorney is in ER with a ruptured spleen and impending  shock.
Doctor states: If you die, no charge; But if you live, I only want  20%, not 33 1/3 to 50%, of your future earnings.

Medical ethics would never allow that scenario!
-------------------
Contingency fees are the plaintiff attorney's Achilles Heel.  Never  forget that.  The FMA has stood tall on this issue of contingency  fees and deserves great praise for their courage in this fight.  If the attorneys respond  that such fees are the key to the  courtroom, let's give those who can't afford hourly rates of  Legalcaid or Legalcare and tie the reimbursement to the Gross  Domestic Product as physicians face with government price-fixing.  (Full disclosure note: I am an honorary member of the FMA and also on  the Board of The Doctors Company.  My comments remain the same regardless of those affiliations and I am not speaking on behalf of  anyone but myself.)

ITEM THREE: LAGNIAPPE
On a personal note, Robin and I are back into our home after 11 months of living in the trailer in our driveway.  We have about 2 more months of work inside our home.  I have stored the trailer in St. Rose, Louisiana.  Love the Ford F-250 truck we bought to tow the small but heavy trailer and to use for the next evacuation.  Levees not fixed yet.  My medical practice has been dissolved because of the destruction in New Orleans East.  My colleagues are scattered and two went to Columbus, Mississippi.  Sad but it is our reality.

Intrepid Resources/The Medical Risk Manager Company 
(  www.intrepidresources.com  )  has been reactivated and I am busy with Intrepid, serving on Boards, and hope to get more active in teaching at Tulane Medical School where i am Clinical Professor and School of Public Health and Tropical Medicine in the Health Systems Management Department where I am Adjunct Professor.
Have been on the road a fair amount with speeches.  ( See http://
www.intrepidresources.com/assets/djp_speeches.pdf  )

Recent speeches include The Doctors Company, Maine Medical Association, a Mississippi riverboat lecture to AMA medical student members from Arkansas, Oklahoma, Louisiana, and Mississippi,, and the Robert A. Ross Society of Ob-Gyn doctors.  Also trying to finish my book on Leadership.

Will be in Atlanta, Georgia Saturday night as a guest for the installation of Dr. Bill Clark as President of the Medical Association of Georgia and back home on Sunday for a doctor's appointment on Monday.  Now 2 days post-operative for removal of a right eye cataract.  Terrific  results.  Colors so vivid.  Another example of modern medicine at its best.  My ophthalmologist is Dr. Ron Landry, a wonderful surgeon.  Left eye to be done in a few weeks.  After the visit on Monday, Robin and I take off on a road trip in the truck to Columbus, Ohio for a speech.  Will visit 3 of our grandsons in Atlanta, Georgia on the return trip.

Hope all is well with everyone.  Don't be discouraged by temporary reversals with medical liability reform.  Patient access to care will demand a common-sense system in the end.  Do your homework, have courage, and don't give up!
Remember, the New Orleans Saints are now 3-0.  Anything is possible.

Stay well and travel with care.
Donald

P.S. Just finished the latest book, The Mephisto Club, by best selling New York Times  author, Tess Gerritsen.  Dr. Gerritsen, a physician, is a member of the Maine Medical Association and is a delightful person who has written multiple suspense thriller best sellers.  So far I have read The Surgeon, The Apprentice, The Sinner, and now The Mephisto Club.  She is married to last year's President of the Maine Medical Association, Dr. Jacob Gerritsen.
Check out her web site and blog:
http://www.tessgerritsen.com/

Donald J Palmisano, MD, JD
504-455-5895
312-560-0180 cell
DJP@intrepidresources.com
www.intrepidresources.com