Middle management was stunned. Jack Kvernland, Prudential’s President, had just announced to us that Prudential was going to insure emergency room physicians throughout the United States. The problem? We were a car and life insurance company. We knew nothing about medical malpractice.
I had recently been hired away by Prudential from Nationwide Insurance Company where I had been serving in their home office as the top claims-legal counsel for the company. Leaving Woody Hayes country for New Jersey appealed to me as a young man wanting to go east. (Don’t laugh unless you have been there. New Jersey is a delightful place to live and work).
Jack Kvernland was a hard-drinking man, steeped in math, a Reed College graduate. Doing a deal like this, over drinks with cronies, is common in the insurance business. Jack apparently couldn’t pass up the premiums presented by the emergency room doctor's organization even though Prudential Property and Casualty Company had no one on staff, save me, that had any experience with the volatile business of medical malpractice.
When your local politician attempts to link tort reform with health care reform here is what is really going on. Doctors whine to their local politicians about the cost of their medical malpractice insurance. They want protection from lawsuits when they make mistakes in handling their patients. Doesn’t everybody want protection from lawsuits when they make mistakes? Nobody explores whether the medical malpractice insurance industry knows what they are doing when it comes to those huge premiums charged to the good doctors. Prudential didn’t.
At the time, Prudential was taking in $25 million dollars cash every day in premiums. Actuaries told me it was their goal to make a 40% return on that daily cash flow. Jack Kvernland could do the math. If you need help on the math read the book, The Invisible Bankers (Everything The Insurance Industry Never Wanted You To Know) by Andrew Tobias.
For the last twenty years I have had a plaintiff’s (the person doing the suing) law practice including representing patients against doctors for their negligence. Here are the existing natural barriers to frivolous medical malpractice lawsuits:
1. Informed Consent -- Every doctor in every city in the nation has their patient sign an 'informed consent' document when they do any medical procedure, no matter how small. This document says that the doctor has advised the patient of the risks of the procedure. The patient then has to agree that they are now aware of the risks of what the doctor is doing to their bodies. Thereby, the patient signs away their suing rights if the mistake is within the parameters of the medical procedure. Take amniocentesis. In some pregnancies a doctor may want to go in and take a look-see. They do this with a hollow needle to extract amniotic fluid to make sure all is ok if they can't learn the same information through ultrasound.
When the doctor accidentally jabs the instrument where he/she shouldn't, causing bad things to happen to the patient, the informed consent document acts as a prophylactic against a lawsuit by a lawyer like me.
2. Summary Judgment -- The doctors already have convinced most legislatures to create a law that says this: If a patient is going to make a claim for medical malpractice, the patient must first find a doctor who is willing to go on the record as saying the medical care did not meet the community standard in the area where the doctor and patient live. That costs money. Have you ever heard of the 'conspiracy of silence'? Unless the care is really shoddy, it is very hard for a patient and a plaintiff's lawyer to find a doctor to testify against another local doctor. (Lawyers on the other hand, are oh-so-willing to vouchsafe how bad another lawyer acted in a given situation!!)
So, without a hired doctor’s written warrant in a patient’s lawyer's hand at the very beginning of case that the other doctor’s care was really, really bad, the plaintiff’s attorney has no hope of going forward.
These two safeguards against weasel attorneys filing ‘junk’ lawsuits are more than adequate to protect doctors. Now, who is checking out insurance companies like Prudential to see if they know what they are doing when they send that huge premium bill to your local doctor?
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