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Mark Bello
Mark Bello
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Is Texas Protecting Dangerous Doctors?

59 comments

Governor Rick Perry routinely overstates the success of tort reform in Texas. Contrary to what he touts, there has been a very small increase in practicing doctors in the state and the bulk of the influx was in larger cities where health care was already abundant.

Texas has 254 counties; only 106 have obstetrician/gynecologist — just six more than in 2003. For example, Presidio County’s one and only practicing physician, one doctor for 8,000 residents. Because the physician does not deliver babies or treat emergencies, many women move to another part of the state while pregnant. In Pecos, about four-hours north of Presidio, a California woman became ill while traveling through the area. By the time they reached the closest hospital nearly 200 miles away, the woman died in the car. These are the kind of underserved regions that Perry said would benefit from tort reform. Bottom line is that tort reform did not increase rural health care in Texas.

Now here’s the other twist. It is no secret among doctors that if you’ve been disciplined in other states for repeated accusations of negligence, Texas is the place to move your practice. Why? The Texas Medical Board (TMB) is not required to disclose cases of medical malpractice when a doctor moves from another state. In fact, they are not required to even look into cases. You read that correctly, the Texas Medical Board does not check to see if a doctor moving from another state has a track record of seriously injuring or killing patients. The responsibility to disclose malpractice cases rests solely on the doctor. If the doctor does not report his/her own medical negligence, patients are left in the dark.

That was the case with Dr. Stefan Konasiewicz (Dr. K), a brain surgeon who couldn’t work in Minnesota so he went to Texas where his negligence would be protected by the Texas tort reform. Thanks to Governor Perry, if you are injured, or worse, it is nearly impossible to seek justice because the state tort reform severely reduces a doctor’s accountability for negligence. Feel safe now?

Sadly, Texas has become a safe haven for dangerous doctors. Governor Perry and his supporters have made it clear that protecting health care providers is more important than protecting patients; that “making more money" has replaced "do no harm” for these corporations. Doctors are allowed to erase previous harm done in another state then avoid accountability for harm caused in the future. Bad doctors are attracted to places that allow them to injure people and not be held accountable. Telling doctors to come to Texas and no matter what they do to their patients they will keep their license and continue to make obscene profits. Just remember that these apply to every case, even the most serious malpractice cases.

If Rick Perry and his supporters were hoping tort reform would attract more doctors to the state, they should have thought about the quality (rather than quantity) of the doctors they would be attracting. If you were a doctor with a history of committing malpractice, wouldn’t you move to Texas?

Only you, the people, can stop this nonsense. Don’t be another victim of a bad doctor’s negligence; don’t be a victim of senseless, anti-citizen, tort reform, politics and corporate greed.

Contact your local, state and federal elected representatives; find out where they stand on these important issues. If they stand with the corporations and the tort reformers, tell them they can’t have your vote. Anytime a politician says “tort reform”, they are really saying “deregulation” of the medical profession. Is that what you want? Tell them to speak up for the American taxpayer not their corporate cronies. If they refuse, vote for the “other guy”. You have rights; make them be heard.

Mark Bello has thirty-three years experience as a trial lawyer and twelve years as an underwriter and situational analyst in the lawsuit funding industry. He is the owner and founder of Lawsuit Financial Corporation which helps provide cash flow solutions and consulting when necessities of life funding is needed during litigation. Bello is a Justice Pac member of the American Association for Justice, Sustaining and Justice Pac member of the Michigan Association for Justice, Business Associate of the Florida, Tennessee, and Colorado Associations for Justice, a member of the American Bar Association, the State Bar of Michigan and the Injury Board.

59 Comments

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  1. Cilla Mitchell says:
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    Thank you for bringing a subject to a public format the state of Texas has been sweeping under the rug. Thank you!

    About half the members of the TMB were appointed by Governor Rick Perry. The president of the board, Dr. Irve Zeitler who also was appointed by Governor Rick Perry, has allowed countless of reckless negligent doctors to practice freely without accountability under his watch. A geologist was appointed by Governor Rick Perry. A geologist! An animal control specialist would have made just as much sense.

    Leigh Hopper, spokes woman for the TMB has written in her reply to family members demanding accountability as to why their loved ones died, “‘we judge a doctor’s guilt by their demeanor.” If this is not an arrogant, stupid, unacceptable answer, I do not know what is. The sad fact is, she can get away with it.

    Why? The Tort Reform Act Governor Rick Perry signed was the the instrument used to strangle the 7th Amendment in a quiet, unceremonious death.

    The only recourse to getting justice for our loved ones is to take the law into our own hands. Is this what we have evolved to?

  2. jc says:
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    This is the most biased post on the web, obviously written by a plaintiff’s attorney! Lets review some nationwide facts. 80% of malpractice cases that go to trial are won by the defendant doctor. That means that plaintiff attorneys have an 80% failure rate when they try cases. No other industry in America has such a dismal failure rate. Any Joe Lawyer in the USA can sue a doc for malpractice. These are highly technical lawsuits which require expertise to suscessfully prosecute. Yet the ABA requires no specialized training, it is learn on the job. Imagine if a doc wanted to do complex brain surgery by learning on the job! I totally support Gov Perry in getting these greedy incompetent lawyers out of Texas. More power to him!! He should be elected President!!

  3. Cilla Mitchell says:
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    Mr. Bello:
    I have just read jc’s comment. I eagerly anticipate and await your response. I chose not to respond to this because I still would like to remain a welcome visitor on your blog.

  4. Anna Mae Rooks says:
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    JC must be another knuckle-dragging Republican who is willing to let incompetent doctors get away with murder. The State of Texas has a duty and an obligation to ensure that health care is safe, that doctors are morally fit to practice medicine, have sound judgement, and are capable of providing the standard of care required in each case.

    The state has failed miserably! The main duty of the Texas Medical Board is to protect doctors – no matter how reckless, grossly negligent, or incompetent they are. Based on my personal experience with the TMB, falsified medical records are acceptable, they find nothing wrong when a doctor falsified medical records, practicing outside one’s area of expertise, refusal to see an ill heart patient, failure to order blood chemistries, failure to diagnose, performing a procedure which the doctor KNEW was unnecessary in order to fatten his pocketbook. The patient was my son and he died as a direct result of the recklessness, gross negligence and incompetence of two doctors. The medical board saw NOTHING wrong, and dismissed the case due to “lack of evidence.”

    Rick Perry and his cohorts have blood on their hands. the Texas Medical Board is a joke. They sacrifice public health and safety and enrich doctors, insurance companies and special interests who profit greatly at the expense of patient safety.

  5. Mark Bello says:
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    Celia: You are and always will be a welcome visitor. As to JC, I dont have to say much, because my new friend, Anna Mae, said much of what needed to be said. I will say this: Whether JC’s unsupported statistics are true or not, he and many others make the debate about LAWYERS. It is NOT about lawyers. It is about VICTIMS and dangerous doctors. Contrary to JC’s rhetoric, the LEGAL profession oversees and punishes “bad”lawyers. Tort reform and, apparently, the TMB, make it possible, even lucrative, to be a “bad” doctor, especially in Texas. I get it JC, you hate lawyers; but as someone who is only one botched procedure away from being a victim, as a citizen who visits doctors, I would think that you would support a system that holds bad doctors fully responsible for their bad acts and appropriately compensates victims so the taxpayers aren’t left holding the bill. Negligent lawyers do not cause death; a negligent doctor may. Your 80% figure makes for a good blog response, but ignores cases resolved successfully in many other ways. The vast majority of malpractice cases are resolved successfully. Since lawyers handle theses cases with their own funds and on a contingency fee basis, there is little incentive for them to pursue poor cases. Yes, they lose some; when they lose, they receive no compensation, and they lose the money they spent to pursue the case. Sometimes, in rare circumstances, they are subject to financial penalties. Contrast that with a doctor who is compensated by the healthcare system regardless of the level of competency and procedure success. Unless there are mechanisms in place to punish the incompetent, there is no economic reason for them to stop. The way to reform the medical-legal system is to find ways to reduce the incidents and seriousness of malpractice. Tort reform does not do that; it has the opposite effect of reducing compensation to victims and penalties to doctors, making it easy and painless for bad doctors to continue to see and (mis)treat patients, especially in Texas.

  6. jc says:
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    Response to Ms Rooks – -Ms Rooks must be a wide eyed liberal activist willing to let incompetent lawyers drag down the Texas economy and chase out competent doctors. The duty of the America Bar Association and the Texas Supreme Court is to assure that only competent attorneys are allowed to file lawsuits. In this, these organizations have failed miserably. A plaintiff’s attorney filing a malpractice case has a better chance of winning a coin flipping contrest than winning a trial verdict for his client. When he does win a claim, (after years of litigation!)the plaintiff’s attorney gouges the patient for up to 60% of the award. Some patients receive no award at all as the plaintiff’s attorney hordes all the award! Based on my personal experience, I have seen plaintiff attorneys pursue a trivial case relentlessly until the Judge thru the case out after years of litigation when it was obvious from the outset that there was no legitimate claim. Yet neither the ABA nor the presiding judges ever see anything wrong!
    The ABA and the US courts have blood on their hands for letting this legal travisty continue, which causes increased medical costs for all and drives out legitimate doctors and businesses depriving citizens of the USA from the medical care and jobs that they need.

  7. jc says:
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    Response to Mark Bello: Competent malpractice attorneys know that 80% of trial verdicts are for the defense and that 70% of docs sued for malpractice result in no malpractice payment. This is not about doctors or lawyers, it is about victims who are being poorly served by the current legal system. Bello is lying when he says the legal profession punishes bad lawyers. It is almost unheard of for a lawyer to be punished for filing a frivolous lawsuit by a judge or the ABA.
    Docs are largely prohibited from countersuing lawyers for filing frivolous litigation. I would think Bello would support a system whereby docs could countersue lawyers for filing frivolous litigation which would improve the dismal plaintiff attorney failure rate of 80% Remember any Joe Lawyer can sue a doc without any training in malpractice litigation whatsoever. Contrast that to the medical profession where you have to get privileges at a hospital in order to do surgery and you have to show evidence of training. Hospitals rigorously check on doctors thru PEER review systems and if you are outside the statistical norms, consequences (lost privileges) result. The bottom line is if docs make too many mistakes they lose their hospital privileges and reputations and their practice. If we really want to help patients who are victims, we need to move to medical courts and get it out of the hand of these greedy lawyers and incompetent judges who take years to reach a verdict. With medical courts a quick decision could be made in 3-6 months not 3-6 years and decisions could be made on facts not legal gamesmanship.

  8. Mark Bello says:
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    JC: Your statistics are patently false and calling me a lier won’t make them true. I put my name to what I say; I don’t hide behind initials, anonymously. There is absolutely no incentive for a lawyer to file a “frivolous” lawsuit when he/she works on a contingency. And,if “frivolous lawsuits” were what tort reform was about, why does tort reform always “cap” serious cases? The vast majority of malpractice cases are resolved in favor of the victims; that is a fact that is not in question. Produce your statistical analysis that says otherwise. The 3-6 years you are spouting about result from the pursuit of frivolous DEFENSES pursued by doctors. Again, there is no incentive for a lawyer, working on a contingency fee basis, to delay legal proceedings; that is strictly a defense tactic. And JC, there is a place where doctors can go when they are found to be “incompetant” by peer review; its a wonderful safe haven for all doctors who lose hospital privileges in their current community. It’s a place where all incompetant doctors can go and live and commit medical mistakes in peace, with little oversight and almost no consequence. It’s called “Texas”.

  9. Cilla Mitchell says:
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    JC:

    Your argument solidifies my last statement that in Texas the only way to get justice will be to take the law in our hands. FYI, do not use the word “obviously” so cavalierly, because obviously you are sadly mistaken.

  10. jc says:
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    Bello: If “liar” is an accurate description of you that that is what you have to live with. I did a little quick research on Google and found Burke & Eisner Law Blog – -Plaintiff attorneys who state, “The success rate of medical malpractice suits is only nearly a quarter of the total number filed.” This is a plaintiff’s lawyer blog which confirms my personal experience that 80% of cases which go to trial are won by the defendant doc and 70% of docs named in malpractice cases are dropped with no payment. So you lawyers are filing way too many malpractice lawsuits and winning way too few cases. As a doc, if I had a 20% success rate, I would not be in practice very long!

  11. Anna Mae Rooks says:
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    After reading JC’s latest diatribe, it raised the probability that he is either a doctor, a member of the Texas Medical Board, or is one of the beneficiaries of Tort Reform.

    Hey JC, what if YOUR family member was KILLED by a doctor who performed a needless procedure on a patient with prior serious problems with anesthetics, who blatently falsified medical records to try and cover his actions, who failed to diagnose, who refused his legal obligation to see a sick patient, who was willing to risk a patient’s life for a needless procedure just to collect extra money. Hard to believe? I have the evidence dearie. The doctors who killed my son should be in jail. And no, I don’t want money, I want justice and accountability. Like I said before, Rick Perry and his cohorts have blood on their hands because they are enabling dangerous doctors with no accountability or justice. As long as you and yours are unscathed, you approve of killer doctors.

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    I am a personal injury trial lawyer in Texas who does not handle med mal in Texas. I can vouch for the fact that the system is broken. But not because of the Plaintiff’s bar. Between Rick Perry pandering to insurance companies and corporations and the Texas Supreme Court doling out “agenda justice”, victims rights have been severely impaired in Texas. Importantly, Doctors premiums have not gone down although claims against Doctors have been drastically reduced. The only winners are insurance companies and the politicians and “justices” they bank roll on election day.
    My advice to “JC” is watch the movie Hot Coffee with an open mind and open heart. And never forget that the ONLY defense we ordinary Americans (including CJ) have against the complete obliteration of our civil rights by those very same special interest groups is the tireless work of trial lawyers.
    And if you need us(God forbid) we will be there for you JC!

  13. Anna Mae Rooks says:
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    No, JC, Ms. Rooks is not a “wide-eyed liberal activist”, she is a mother seeking justice for the preventable death of her son who was killed by the recklessness, gross negligence, and incompetence of two doctors…you know, the guys who promise “I will do no harm”. In fact, some doctors do quite a bit of harm and, therein lies the problem. The State of Texas doesn’t care.

    I have never heard of a lawyer’s recklessness or negligence killing a client. I have heard quite a bit about doctors killing their patients.

    It is the duty of the Texas Medical Board and the state legislature to ensure patient safety. They have failed miserably. Do you really think that if killer doctors were held accountable for a patient’s death that all other doctors would flee the state?? If they do, good riddance to them because that means they are afraid they will be exposed for the charlatans they are.

    Tell your buddies at “Texans for Lawsuit Reform” hello. Your comments are propaganda and we’re not buying what you’re selling.

  14. Mark Bello says:
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    Dr. Cox: Call me what you will. Your “personal experience” is not an adequate statistical sample. The vast majority of filed medical malpractice cases are “settled” without a trial. That is the truth. I stand by the statement. Lawyers practice under the same malpractice standards as doctors do. The difference, especially in Texas, is that we police our own better than you do.

  15. Mike Bryant says:
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    JC I see you are going into the personal attacks early. The Texas system only works for bad doctors. It hasn’t helped consumers and has not had a single positive effect on medical costs (which have actually gone up). Maybe stick to the your state, although the past shows us that you love to misquote cases from there also.

  16. jc says:
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    Mark: Liars are people who misquote statistics. I gave you statistics from a plaintiff lawyer’s blog, so maybe you should call them up if you have a problem with their statistics. I see docs sued and cases dropped all the time because plaintiff attorneys do not do the necessary research to justify the case. An example is the Scheckelhoff Case where 8 docs got sued and 90 days later 8 docs got dropped because there was no affidavid of merit. If that is not frivolous, I do not know what is. This happens all the time where 5 docs will get sued and 4 will get dropped and the final one will eventually get dropped. What I am sick and tired of seeing is lawyers like you getting up there and saying frivolous suits never happen when they happen all the time. If they never happen Mark, do you support legislation to allow docs to countersue any attorney who files a frivolous malpractice suit? If not, why not?

  17. jc says:
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    Mike it is good to hear from you again. I remember the last time we tangled and you got fed up with me for going over and over all the frivolous lawsuits you plaintiff attorneys file. Maybe I should write a book for plaintiff attorneys “How to Practice Malpractice Law Gooder, Don’t Make These Dumb Mistakes” Hey, Rick Perry is right on with his malpractice reform and we need more of it. Tort reform is a reason Texas is leading the USA in job creation! Michigan could learn from this!

  18. jc says:
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    Credentialing is what happens when a doc applies for staff privileges at a hospital. Dr. Stefan Konasiewicz (Dr. K) had to go thru credentialing to get privileges to get on staff at a hospital in Texas. If he had malpractice suits in Minnesota or lost staff privileges in Minnesota, that is reported to the National Practicioner’s Data Bank (NPD) Hospitals are required to check the NPD before credentialing any doctor. So the Texas hospital knew about whatever happened in Minnesota before Dr. K was allowed to operate. If Dr. K has a Texas License and a hospital lets him operate, what is Texas supposed to do about that? Another Mark Bello legal distortion bites the dust! (Mark, I bet running a blog is much more fun when you don’t have someone like me who knows what he is talking about to refute your weird arguments.)

  19. Anna Mae Rooks says:
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    The State of Texas was indifferent to the lives and safety of Texans when they gave a medical license to a doctor with the horrendous background of Dr. K. It speaks volumes about the utter disregard the state, the medical board, and hospitals have for patient safety.

  20. jc says:
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    I do not know about Dr. K. But I do know that Texas and the hospitals knew Dr. K’s record whatever it was. I am not defending him but I would note that there are only 2600 neurosurgeons in USA and you cannot have a level 1 or level 2 trauma center without a neurosurgeon. I suspect that Texas and the hospitals had to make a choice to either accept Dr.K or close down a trauma center. I do not know enough to say whether or not this was a good choice. These questionable choices are made by the military and other governments besides Texas.

  21. jc says:
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    J. Robert Davis: You are wrong to say that malpractice premiums have not gone down in Texas. A colleague of mine with similar malpractice experience went down to Texas and pays a third of what I pay in Ohio. Now, the politicians say malpractice premiums are high because malpractice companies have not invested their money well. So politicians and lawyers apparently believe that malpractice companies are 3 times better at investing their money that malpractice companies in Ohio? Hey, Texas has Tort Reform and Ohio doesn’t and that is why malpractice rates are significantly lower in Texas than Ohio!

  22. Cilla Mitchell says:
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    The State of Texas has also has failed miserably in keeping their nursing home population safe along with every other Texan who has the misfortune of using medical facilities in this state. I worked at a facility in Galveston, Texas and found fabricated and false documentation on a resident who had an open ulcer on his foot. When I went to do the treatment, it was ovious nobody did the treatment to the wound in quite some time. It smelled like gangrene. I sent him to the ER and boy howdy, he had gangrene. I called state on it. Two female inspectors showed up and inspected the place for a week. After they were through, they called me up and told me they could not find anything wrong. I asked them point blank, how much the facility was paying them. I knew right then and then the State of Texas was letting their citizens down. The resident ended up getting his foot amputated and died shortly thereafter. Governor Rick Perry brags about how medical costs have gone down since he signed the 2003 Tort Reform Act. He is correct. It is very easy to cut costs when medical care is not given to someone who is rotting in the emergency for 17 1/2 hours without receiving even the basic standard of care. It is very easy to cut costs when there are laws that prevent accountability and cases never making it the courts because the 7th Amendment has been strangled and left to die. Of course medical costs are going down in Texas. What state wouldn’t have medical costs go down if care is not given, false and fabricated documentation is ignored and the state agencies and state officials treat Texans like they are the enemies.

  23. jc says:
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    Mark Bello: I gotta tell you, in my experience all the delay caused in malpractice cases is due to incompetent plaintiff attorneys who have rushed to file a frivolous case and then can’t come up with the expert witnesses to back them up. In any case my colleagues and I have been involved in, we are right there on time with witnesses, motions, responces etc. We want to go to court as soon as possible because 80-90% of the time the jury gives a defense verdict. Also, its always funny watching these bozo plaintiff attorneys screw up the case. Here is a little niche for you Mark, you could fund patients to sue their attorneys after they screw up their cases. That could be pretty lucrative.

  24. Cilla Mitchell says:
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    JC:
    First of all, the statistics you are citing have no references. Second, you are using initials which means you can not man-up to what you are conveying. Third, propaganda may be a useful tool used against people who can not think for themselves. If that is the case, I doubt you will change anyone’s mind here.

  25. Mark Bello says:
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    Dr. Cox: There is no need for such “legislation”. There are already mechanisms in place, in the civil justice system, to punish lawyers for bringing “frivolous” lawsuits. It isn’t used much because it doesn’t happen much. I support that process. Arguing that the fact that the hospital knew of Dr k’s record and granted him privileges anyway and that Texas licensed him anyway somehow “refutes” my “weird” argument is….well…weird. Your statement BUTRESSES my point; it does NOT refute it. And, I love debating people who “know what they are talking about”. Unfortunately, you are not in that class of people. You present as an angry doctor who has probably had to defend himself more often then he’d like and prefers to blame lawyers and victims rather than doctors and insurance companies. My advice? Work to improve safety in your profession, not for the denial of justice to its victims.

  26. jc says:
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    There are a few incompetent docs out there. There are more incompetent lawyers out there. I love Texas because of Tort Reform and because 80% of malpractice cases are frivolous. Texas tort reform allows serious cases to come forward as opposed to the 80% which are frivolous. You guys want to talk about the incompetent docs out there, what about allowing docs to countersue lawyers for frivolous litigation. Since you say it never happens, you should be all for that.

  27. Anna Mae Rooks says:
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    There are more then “a few” incompetent doctors out there and most of them are practicing in Texas. Texas Tort Reform ABSOLUTELY DOES NOT allow
    serious cases to go forward. I though an expert like yourself would know that. There is a $250,000 cap on damages, regardless if the patient is recklessly killed by his/her doctor. $250,000, LESS ATTORNEY’S FEES, EXPERT WITNESSES, DEPOSITIONS, LESS COURT COSTS LEAVES nothing!

    Doctors, insurance companies, special interest groups, people like you, love Tort Reform…until you or a loved one is killed or permanently injured, Then you will feel the real impact of Tort Reform. Stay well.

  28. jc says:
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    Rooks: I love Texas – -gets rid of all the plaintiff attorneys. Think about it – -no one running around filing frivolous suits! You know, if lawyers would support doctors being able to countersue plaintiff attorneys for frivolous lawsuits, we would have more careful attorneys also.
    Doesn’t take a brain surgeon to know that if a patient goes into the hospital for foot surgery and gets a normal chest x-ray and botched foot surgery, it is not the radiologist’s fault. Yet the rad often gets sued because his name is on the chart. So dearie, there is incompetence on both sides. One of my colleagues got hit with a frivolous lawsuit which took 6 years to get thrown out of court. How would you feel if you were the doc that had to go thru that!

  29. Mark Bello says:
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    Doc: You are repeating and re-repeating the same, tired arguments, comment after comment. Move on; at least wait for the next anti-tort reform post. You can make those same, repetitive, arguments you have made over and over, here, and on May 11 in Mike Bryant’s excellent post. Your position has been made known and you are aggravating people who have suffered tragedies and received a second injustice from the Texas system which protects doctors more than patients. Physician: stop doing harm; heal thyself. Move on.

  30. jc says:
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    Mark Bello you are repeating and re-repeating the same old tired rants about bad doctors who are few and far between. It is time that you look at the American Bar Association and the legal profession and demand that some specialization training for lawyers occur so that inexperienced lawyers are not filing frivolous lawsuits against caring considerate doctors who are trying to do the best job they can do. It is a tragedy when a plaintiff’s attorney promises compensation to a victim and fails to do basic research into the case to make sure that the patient or disease entity is not really responsible for the poor outcome instead of mistakenly blaming the doctor.It is horrible for a victim to have to go thru 4-7 years of litigation to find out the poor result was due to patient non-compliance or the disease process or a butchered presentation by the plaintiff’s attorney. Plaintiff attorneys, just like doctors, should refuse to take cases with no merit and no likely favorable outcome. Until plaintiff attorneys clean up their own profession and demand specialized legal training for this litigation, I will continue to speak for those unfortunate victims of frivolous litigation, the doctors and the plaintiff attorney clients.

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    One of JC’s primary points about the “odds” doesn’t seem to support his argument. Why would plaintiff attorneys continue to pursue “highly technical and expensive” medical malpractice litigation when they lose 80% of the time? I’ve actually heard the odds are worse (6:1 in favor of the doctors).

    As Mark points out, these cases are almost always pursued at great cost to the plaintiff’s attorney who suffers a significant financial loss if he or she loses.

    Why would a firm pour their own money into a case, only to get in front of a jury who will reject their claim, for whatever reason?

    The attorney must truly believe strongly in not only the merits of the client’s claim, but also in the likelihood of being able to win it (e.g., can the negligence be proven?).

    Most lawyers are not physicians (although there are some). They don’t want to pursue an expensive, unwinnable case, on technical information they don’t understand, any more than a doctor would want to represent himself in a complicated legal matter. So they will seek the expensive expertise of nurses and physicians as to whether or not an act of significant malpractice occurred before they ever decide to go to trial.

    You could argue that people pay for opinions all the time, but the quality and credibility of the medical opinion is crucial in this case. I once heard a physician (a neurosurgeon) say, “Of course (what the hospital did) was malpractice, but I can’t go on record saying that – I still have to work in this profession.”

    The idea that “the vast majority of cases are bogus” doesn’t seem to hold water. If, as a victim of malpractice, you can’t find a doctor in the country who will side with you for professional reasons, despite the merits of your claim, how can you win?

    I doubt anyone is going to change JC’s opinions. But hopefully this debate about healthcare safety and legal reforms (and I mean true reforms, not regressive, one-sided, special interest handouts) will continue and grow louder, bringing more Americans into the conversation. Healthcare safety is a complex and crucial subject which begs more attention.

    At the end of the day, I don’t think anyone has summed it up much better than Congressman Bruce Braley from Iowa did during the healthcare debate a couple years back:

    http://www.youtube.com/watch?v=_Xm1Z5by_ps

  32. Mark Bello says:
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    JC: Malpractice lawyers investigate, at significant expense, cases that they do not see merit in and turn down, all the time. Medical Malpractice is a highly specialized and expensive area of the law. It is far too expensive to pursue a case you know to have “no merit and no likely favorable outcome”. As to the lawyer who does, I’d love to see his/her business plan! Are there a few bad lawyers just as there are “few and far between” bad doctors? Sure there are, but our profession does not scream for “tort reform” to protect their sorry asses and our profession does not create political safe havens, like Texas, for them.

    Darren: Thanks for your well-reasoned post; there is simply no ecomomic justification for pursuing a “frivolous” medical malpractice case. The end does not justify the means. Bruce Braley is a hero of mine. You don’t fix a problem (reducing the incidents of medical errors) by reducing the penalties against those who cause them.

  33. Cilla Mitchell says:
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    Just played the video. Wish we had more politicians like Bruce Braley. His speech is short, sweet and to the point. It takes a lot of guts to stand up for one’s beliefs in the politically correct society we are living in.

    I think I heard JC in the background disrupting Mr. Braley’s speech. JC does get around, doesn’t he?

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    Without a doubt Perry’s stance on tort reform is denying victims injured by negligence adequate compensation. I agree that Perry also inaccurately boasts about the improved climate for doctors in Texas after his reckless tort reform laws went into effect. He declares that more than 20,000 doctors came to Texas because of the new tort laws. This was proven to be completely false by Politifact.
    http://virginiabeach.injuryboard.com/medical-malpractice/presidential-candidate-proudly-declares-support-for-denying-victims-compensation.aspx?googleid=293778

  35. jc says:
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    I listened to Bruce Braley’s triade. It must be noted that he is a plaintiff’s attorney, hardly a non-biased observer. It must also be noted that the studies that he quoted were highly suspect and have been discredited on other injury board sites. Aside from that, I work every day in the medical field as I have for decades. I obviously do not inhabit the same world that you readers do where docs do things solely to make a buck and where all docs are incompetent. I just don’t see 1.5 million medical mistakes a year or anything approaching that. Malignant microcalcifications in a breast are the size of grains of salt. If a doc misses three microcalcifications one year but sees 6 microcalcifications the next year and then orders a biopsy and it turns out to be malignant, is that doc negligent for missing the three micros the first year? The treatment is the same for the three micros and the six micros. Is that one of the mistakes that Braley is talking about? Should that doc be sued and forced out of practice and be unable to support himself and his family for that one mistake, which caused no harm to the patient?Should the patient be entitled to pain and suffering damages and delay damages. Believe it or not, there are plaintiff attorneys who would take that case and attempt to drive the doctor into poverty. This is why docs are leaving women’s imaging as mammography is the most litigenous area of medicine.

  36. jc says:
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    Mark Bello and Darren Wilson: Lets get one thing straight – -there are frivolous malpractice suits filed all the time. Saying it is not economically possible does not dismiss the fact that my colleagues and I have at times be victims of this abuse. In my area the local medical society sees 8 dismissed cases for every 2 settlements. Among my group, the rate of frivolous suits is ever higher. So for you to tell me that frivolous suits don’t happen is like me telling you true medical mistakes don’t happen. As for lawyer penalities and sanctions – -judges never apply them even for egregious cases. Mark since you say it happens, you should be able to back that up by siting 3 cases in Michigan law where that happened in the last year. If you can’t site those cases then readers can decide for themselves the accuracy of your sanctions statement.

  37. jc says:
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    Cooper: I agree with Gov Perry that we should have tort reform with “loser pays” rules. Every other country but the USA has loser pays. It forces docs to settle if they are wrong and it discourages pts from suing if they have a frivolous malpractice suit. The trick is that it must be evenly applied. The patient has to pay the docs legal costs if the patient loses and vice versa. Gov Perry is a god send to Texas and hopefully the USA.

  38. Anna Mae Rooks says:
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    Ho Hum. Rant on jc, no one agrees with you and you’re just wasting your time. Get a life.

  39. jc says:
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    Ho Hum, just another rant by the plaintiff’s bar that there are never ever any frivolous lawsuits. Daren Wilson brings up some good points about having to go out and find expert witnesses. But think about it, if you have to go out and get 10 doctors opinions regarding medical malpractice or prospective surgery and all 10 say no, but the eleventh “expert” says “yes” doesn’t that mean that the prospective surgery or malpractice expert opinion is somewhat suspect? If you gotta pay an exorbinate price to get the “expert” to come in, isn’t that telling you something about your expert , his opinion and your case? I have consulted on med mal cases and I will bluntly tell the lawyer, ‘You don’t have a case and here is why.” (I will also tell him when there is malpractice) But I don’t get consulted very often I suspect because I say things that the plaintiff’s attorney doesn’t want to hear. So an inexperienced plaintiff’s attorney shops for an opinion with potential drastic consequences.

  40. Mark Bello says:
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    Dr Cox: Blah blah blah blah blah. Each of the “ten” opinions your mythical lawyer seeks costs him the exorbitant rates that members of your noble profession charge. The lawyer will certainly seek one, possibly, two opinions, but TEN? Who would waste that kind of money trying to prove a case that isnt there? I have tried to appeal to your common sense, but your common sense cant get by your tremendous anti-lawyer bias. Your rants, to date, have been absurd and false; this one is frivolous. It is reminiscent of a guilty doctor’s frivolous defenses in a serious malpractice case. Move on.

  41. jc says:
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    Mark Bello: Don’t you realize that a lot of the plaintiff “experts” are really hacks that can’t get work elsewhere. You guys dangle a lot of money in front of them and they will say anything. The docs in my area are starting to take a more aggressive approach to these quacks. In Ohio there is an ORC law which states that giving testimony in court in Ohio is the practice of medicine. So if some quack gives false information, we are starting to complaint to the Ohio Medical Board about the guy. That sets off an investigation into the quack and could result in some action against his temporary license. Ofcourse one adverse license action has to be reported to other states in which the doc is licensed in. Hopefully this will rein in these plaintiff attorney quacks.

  42. Cilla Mitchell says:
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    jc:

    Can I ask you a question? Seriously, are you off your meds? Is there a medication you have failed to take? Dude, you need to get back on it.

  43. jc says:
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    Cilia: That is not a legitimate argument. When plaintiff attorneys have an 80% failure rate at trial, somebody has to be filing frivolous cases and it is not the tooth fairy.

  44. jc says:
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    Mark Bello: I have read about you and your business of lending to malpractice victims. There are other malpractice victims that I think are not being properly served. In a few years, when I retire, I am thinking of setting up a lending service for victims of legal malpractice. This could be a lucrative market. Since plaintiff attorneys lose 80% of their cases at trial, I feel that I could contact the victims of these cases and encourage them to sue their attorney. From my experience, the legal malpractice among plaintiff attorneys is legion and by subsidizing these poor victims of shoddy legal work, I would expect that there could be a market for countersuing these attorneys and compensating their victims. Indirectly by doing this, I would be serving humanity by policing the legal profession and getting rid of some of the schisters who are currently practicing malpractice law. From this blog, it sounds like there are no frivolous suits ever filed so every bad result a plaintiff attorney obtains, must be the result of shoddy legal work. Sounds like a good business plan to me, Mark, what do you think?

  45. Anna Mae Rooks says:
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    There are a lot of people who hold doctors in high regard, almost like Gods who can do no wrong, so most juries are likely to give the little god the benefit of the doubt, regardless of the preponderance of evidence. Their thinking is “Well, he’s a DOCTOR, he can’t do anything wrong.” A TOTALLY FALSE PREMISE!

    Doctors are no better than anyone else. Some are child molesters, drug addicts, rapists, alcoholics, sociopaths, bi-polar, and, dare I say,
    killers and torturers. The great majority are still practicing medicine as society has given them a free pass BECAUSE they are doctors.

    It is a pity that our society has elevated them to the status of god -like worship and fail to hold them to the same standards as everyone else.

  46. Cilla Mitchell says:
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    On December 2007 the entire TMB was named in a lawsuit by the Association of American Physicians and Surgeons (AAPS). The complaint was filed in Texarkana and accused the board of misconduct while performing official duties, specifically:

    1. manipulation of anonymous complaints
    2. conflict of interest
    3. violation of due process
    4. breach of privacy
    5. retaliation against those who spoke out

    If the TMB can be sued by physicians and surgeons, why can’t public citizens sue the Texas Medical Board for allowing reckless, negligent doctors to practice freely to leave collateral damage on the unsuspecting public? Dr.Irve Zeitler, president of the TMB, has allowed many doctors to go unpunished under his watch. What would stop Texans from suing the TMB? Would suing the TMB fall under federal laws since it is apparent the State of Texas has failed miserably in protecting the public?

  47. jc says:
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    There are a lot of people who hold lawyers in high regard, almost like Gods, who can do no wrong, so most judges are likely to give the little god the benefit of the doubt regardless of the preponderance of evidence. Judges thinking is, “Well, he’s a LAWYER, like me, he can’t do anything wrong. A TOTALLY FALSE PREMISE!
    Lawyers are no better than anyone else. Some are child molestors, embezzelors, rapists, sociopaths, bi-polar and adulters (like John Edwards) and mental tortures, just like everyone else. The great majority are still practicing law, because society has given them a free pass, BECAUSE they are lawyers.
    It is a pity that society holds lawyers to such a god like standard of worship and fails to hold them to the same standards as everyone else. A good example of this difference of standards is in legal and medical malpractice law. Doctors are held to a far tougher standard than lawyers. Today, in many states, Doctors can be held liable for “loss of a chance” a new higher standard of malpractice liability not currently imposed on God’s gift to society, the Lawyers. So when your friendly lawyer tells you that he has malpractice liability similar to doctors, remind him that docs have far tougher liability standards in most states than lawyers will ever have.

  48. Anna Mae Rooks says:
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    Doctors are “held to a far tougher standard than lawyers” BECAUSE their actions or inactions can and do KILL. I never heard of a lawyers “mistake” causing the death of a client. I have heard of a doctor’s “mistake” killing a patient.

    Doctors definitely should have far tougher liability standards than lawyers will ever have.
    Their patients lives depend on whether the doctor meets those standards.

    Stop trying to make a connection between negligent lawyers and reckless doctors. There is no comparison. Apples & Oranges.

  49. jc says:
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    Cilla: I have worked in PEER review and have some familiarity with State Medical Boards and I feel you may be unclear about some things.
    State medical boards do extensive reviews of physicians before they get their license. But if they meet criteria, they get licensed. Unless it is egregious, malpractice cases are not considered in licensing. Other state board actions are considered. State med boards will take action if a doc knowingly does something wrong (i.e.submits fraudulent insurance claims, molests pts, substance abuse, selling drugs) but generally will not get involved in malpractice cases. All state medical boards have rehab programs for certian offences. Addiction among docs is higher than the general population and the states have programs for this to help the doc so that he can return to practice. If I had a health issue which restricted my practice, I would report it to the board. If the general public had access to these medical records, myself and other docs would not freely report these issues to the med board. Medical PEER review is a legally protected activity which goes on at the hospital level. The public and lawyers cannot get ahold of this information, because it is controversial and can be very damaging to the career of a doc. At the hospital level, credentials and privileges are granted and can be taken away. Statistics are used during PEER review and adverse events are all reviewed. If a hospital takes privileges away from a doc or a doc resigns his staff privileges while they are under review, this gets reported to the National Practicioner’s Data Bank and is a very serious issue. None of this information can or should be given to the public. So if a doc performs poorly and injures a patient, that patient can sue the doc and the hospital for granting him privileges. But the State Med Board is generally exempt from general public litigation due to sovereign immunity.

  50. jc says:
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    Ms Rooks -You and I have a basic disagreement. I do not feel that docs or lawyers or truck drivers should be treated any differently. I strive to treat all the same in my practice and I believe all should be treated the same before the law. If a truck driver crashes into a car killing someone, the truck driver’s negligence was the proximate cause of the driver’s death. Same should hold in medicine. But now, we have “loss of a chance” a law created by judges, because plaintiff attorneys had such a catastrophic failure rate of 80% at trial. This is problematic because a lot of the patients we treat are really sick with multiple co-morbid medical conditions which create complications to a successful outcome. “Loss of a chance” has led to some bizarre outcomes and has recently been outlawed by the South Dakota Legislature.

  51. jc says:
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    One of the things we do not talk about is balance in the law. Right now there are two victims in a malpractice trial. The patient and the doctor who is charged with malpractice. Plaintiff lawyers want doctors to be responsible for “loss of a chance” and unlimited “pain and suffering” damages, and delay damages, all unilaterally available to the plaintiff. But plaintiff attorneys do not want damages assessed against them or their clients if there is contributory negligence or legal fees and damages to the doctor if the doctor wins a frivolous malpractice suit. There would be no need for these tort reform limitations if we would give doctors the equal rights with plaintiffs before the law in these actions. But plaintiff attorneys want an unequal playing field and the general public disagrees.

  52. jc says:
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    Ms Rooks: Did you know that docs get punished whenever a malpractice suit gets filed against them regardless of whether or not they are at fault? Lets take a doc, who treated his pt perfectly, but the pt had some gripe and complained to a plaintiff’s attorney who filed a lawsuit. Let’s say that the plaintiff’s attorney could find no doc to sign an affidavit of merit and the suit had to be dropped after 90 days. The doc, who had the suit filed against him has to report that malpractice suit to any hospital he applies to and every state licensing board forever! This is a permanent mark against the doc’s career which can prevent him from getting staff privileges and practicing at the hospital or in the community he wants to practice in. It can affect his income and will affect his malpractice rates. The doc has no recourse against the lawyer or patient who filed the suit. Is this fair?

  53. Anna Mae Rooks says:
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    When a patient has a “gripe”, it usually involves some type of physical injury. It is more than complaining because the doctor is arrogant or rude, etc. Here in Texas, (and I speak from personal experience) victims of deadly medical malpractice are treated like roadkill. They have ABSOLUTELY NO legal recourse.
    You say that “docs get punished whenever a malpractice gets filed against them.” I would guess that their only “punishment” is mental and not physical harm. Their only concern is how their bottom line may be affected and not how they
    will be able to cope with permanent disability or death. Here in Texas, doctors don’t have to worry about med/mal as their every harmful act is ignored by the Texas Medical Board (unless the doc is running a “pill mill”). Texas is the place to be if you are a doctor who has caused patient deaths. Your new and existing patients will never know how reckless, grossly negligent and incompetent you are.

  54. Cilla Mitchell says:
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    Here in Texas, the only way I will get accountability, is to take the law into my own hands. Yea, you are reading me right jc. This is what happens when the judicial system prevents the common man from getting accountability. If I offended your so call it sensibilities, I meant to.

  55. Cilla Mitchell says:
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    My entire point of this entire discussion is, there is not a lawyer in the State of Texas who will handle a malpractice case because tort reform make is a total impossibility. How can one even get get justice if lawyers will not take a case when the law has them in handcuffs? What the politicians did not realize when they passed these laws is the unintentional consequences derived from denying people their rights.

    If I had a dollar for each lawyer who told me, “Mrs. Mitchell, you have a case and if it were not for tort reform, I would take it,” I would be drinking Margaritas in a far away island for the rest of my life. I even told them, “I will sign a waiver or whatever you want me to sign stating I do not want any money. You can keep it all. I don’t want blood money. I want justice and accountability.” Their response, “It takes too much money to generate a case. We can’t do it.”

    So what is a woman to do? Walk away. I do not think so.

  56. jc says:
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    My entire point is that there is not a lawyer in the entire USA who will handle a legal malpractice case against a plaintiff’s attorney who has filed a frivolous malpractice suit. There are two sides to this argument and there needs to be balance. Docs have to be held responsible and plaintiff attorneys also have to be held responsible. When 80% of malpractice verdicts are defense verdicts, something is wrong.

  57. Cilla Mitchell says:
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    jc, opinions are like assholes. Everyone has one.

  58. Anna Mae Rooks says:
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    In Texas EVERY med/mal lawsuit is considered “frivolous” – even cases where there is substantial evidence of gross negligence, recklessness and incompetence and that includes death cases.

    So, if the State of Texas has taken away our rights under the Seventh Amendment and we are barred from civil court, then the only alternative is to turn to the criminal courts and file criminally negligent homicide/manslaughter charges when there is clear and compelling evidence of gross negligence and recklessness.

    Killer doctors should not be allowed to hide behind their medical license. There MUST be JUSTICE and ACCOUNTABILITY. No man is above the law, not even doctors. Read it and weep JC.

  59. Cilla Mitchell says:
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    I am in total agreement with Mrs. Rooks. Well said.