The Court of Appeals today ruled that orthopaedic surgeons may not refer patients for MRI and CT scans operated by health care entities in which the referring physician or group has an ownership interest. The decision upholds an declaratory ruling by the Maryland Board of Physicians on the issue. The appeal was brought by twelve medical groups, all of whom were referring patients to scanning facilities in which they held ownership interests.

Medical errors occur at staggering rates at medical institutions across the country. The exact statistics on the extent of the problem, however, is hidden from public scrutiny by virtue of laws that protect medical institutions from disclosing the contents of incident reports and peer review proceedings. When a patient inexplicably falls out of bed or dies on the operating room table, for example, an incident report is typically prepared. Access to that report by the patient and his lawyer, however, is typically denied either on the basis that the report was prepared in anticipation of litigation and is privileged, or that the report was prepared in connection with actual or anticipated peer review proceedings against the medical providers whose omissions resulted in the accident and are thus also privileged.

The Kansas Supreme Court on Friday issued an order directing the parties to reargue their positions in a case that challenges the constitutionality of Kansas's cap on noneconomic damages. The case was originally argued before the court in 2009. Since then, Chief Justice Robert Davis died, Justice Nancy Moritz Caplinger was appointed, and Justice Eric Rosen has recused himself. The new complexion of the court may well have precipitated the order for reargument and may signal a shift in the court's long-awaited opinion. The case is being watched around the country and is another in a string of constitutional challenges to state damage caps. Some states' supreme courts, like the Illinois Supreme Court, declared its state's cap on noneconomic damages unconstitutional, while others, like Maryland's Court of Appeals, relied on the doctrine of stare decisis to declare the state's cap constitutional.

Noneconomic damage caps in medical malpractice claims come about as a result of legislation promoted by special interests primarily aligned with the medical, insurance, and business communities. Unfortunately, such caps have created significant and inexplicable disparity between tort claimants in different types of cases. In many states, individuals injured in motor vehicle accidents, for example, do not face caps on their noneconomic loss claims for pain and suffering and emotional distress damages, while medical malpractice plaintiffs in those same states face very restrictive caps on the same damage claims despite the fact that in those cases, the likelihood of longstanding and severe noneconomic injury is higher.

Although Maryland has damages caps on noneconomic loss claims in all types of tort actions, it has separate caps applicable to medical and non-medical malpractice actions. The caps applicable to medical malpractice claims in the state, however, are more limiting on claimants, particularly where wrongful death is claimed when compared to similar caps on wrongful death claims in non-medical malpractice claims.

Equal access to the courts, separation of powers (legislative versus judicial), equal protection, and the right to trial by jury are some of the legal bases upon which state cap statutes have been challenged.

We believe caps on tort claims violate the province of the jury and unfairly prejudice the rights of certain claimants over others. It is ironic that the legislators who banter about the need for a free market system when it comes to health care reform are arguing for governmental restrictions on damage awards by juries who speak for the people when awarding damages and who represent the best a free market system has to offer.

An interesting article in today's Mother Jones summarizes the Republican approach to health care reform and notes their continued and misguided attention on trial lawyers and malpractice claims. Although the House of Representatives voted yesterday to repeal the Obama Health Care Law, they have offered no sound alternatives and have spoken only in broad brush about making health care more affordable by privatization and tort reform. There are no real alternative plans being offered, and those that did exist and were promoted by the more moderate Republicans whose reelection in many states is now in doubt, mirrored the reformed passed by Congress last year.

One thing is for certain, however: Tort reform will have absolutely no effect on the cost of health care in this country. In previous blogs, we discussed the fact that defense medicine accounts for very little by way of increased cost for medical care. As reported in Mother Jones, statistics from the National Center on State Courts reveals that "medical malpractice lawsuits accounted for single digit percentages of all state civil caseloads. NCSC concludes, 'Despite their continued notoriety, rarely does a medical malpractice caseload exceed a few hundred cases in any one state in one year.' NCSC data shows that medical malpractice lawsuits plummeted by about 15 percent between 1999 and 2008, according to the most recent data available. And that's without any help at all from Congress."

In our September 7th blogpost, we noted that a Harvard study revealed that malpractice claims have no appreciable cost on healthcare. " $55.6 billion is the annual 'cost' of malpractice in the United States. Interestingly, this amount represents only 2.4 percent of overall health care spending in the United States and includes approximately $45.6 billion in what the researchers call 'defensive medicine,' i.e., those tests and procedures ordered by health care providers allegedly out of fear for being sued. In other words, 82 percent of the 'costs' of medical malpractice represents what physicians claim is otherwise unnecessary tests and procedures ordered only out of a fear for being sued. In the end, the Harvard study confirms that defensive medicine represents a very small percentage of the overall health care costs in the United States (2.4 percent) and that malpractice litigation and claims payouts are a much smaller and a very trivial fraction of that amount."

The Obama Plan is ambitious and is the law. Although it will not become fully operational until 2014, there is lots of work to be done to draft the regulations and educate the consumer and industry on the operation and effect of the new law. Republicans need to spend their time reading the new laws rather than blindly criticizing them. They should stop wasting time on rhetoric and self promotion and should refocus their energy on doing what is right for the American people and our economy. Trial lawyers and tort reform when suggested as a fix for health care reflects how misinformed the Republican legislators are on the real problems with health care in this country. 

Belsky, Weinberg & Horowitz, LLC is pleased to announce that Alan J. Belsky, Robert L. Weinberg, Jeff Horowitz and Antonio Aquia have been named as Maryland "Super Lawyers" for 2011. The designation is achieved after a rigorous, multifaceted selection process. "Each candidate is evaluated on 12 indicators of peer recognition and professional achievement. Selections are made on an annual, state-by-state basis." The selection process is detailed at SuperLawyers.com.

Alan J. Belsky was nominated for his work in the field of plaintiffs' medical malpractice. Robert L Weinberg was nominated for his work in the field of plaintiffs' personal injury. Mr. Horowitz was nominated for his work in the field of workers' compensation. Antonio Aquia was nominated as a "Rising Star" in the field of consumer bankruptcy.

For more information about our firm, please visit our website or contact our office at (410 234-0100.

For more information about the case, please visit our website at www.legalteam.net or contact us at (410) 234-0100.