Update to Michigan Medical Malpractice Laws

Story first appeared in The Detroit News.

It's not in the state Governor's health care plan, but medical malpractice tort reforms could help Michigan deal with a nationwide doctor shortage. Other states — Texas most recently — have overtaken reforms Michigan adopted in the 1980s and 1990s.

Loopholes and ambiguous legal provisions are eroding controls that once made this state a national leader in avoiding unwarranted and overblown liability awards, according to the Michigan State Medical Society. That could make it harder to recruit enough doctors to meet the growing needs of an aging population, not to mention the expected surge in newly insured families under the 2009 federal affordable health care act.

Even if we take this step, trends aren't in our favor. One in every four Michigan doctors is older than 60 and approaching retirement, says the Medical Society, which represents about 16,000 Michigan doctors.

Studies suggest the state will have a shortage of more than 4,500 physicians in fields such as pediatrics and internal medicine by 2020.

Almost two-thirds of the state's doctors told the Medical Society in 2010 that their practices were full and they can't take more patients, up from 42 percent five years earlier.

And the federal health care law and its insurance exchanges, should it be upheld, would bring 75,000 additional Michiganians into the market for regular physician care.

There is a new package of bills to restore the limitations on non-economic damages that were intended by earlier malpractice liability reforms. Those limits were among the most effective of the rules that ended Michigan's long and dubious distinction as a haven for liability lawsuits in the 1980s.

Non-economic damages used to dramatically drive up the totals won by lawyers for their medical malpractice clients. Juries were encouraged to pile on tens of thousands of additional dollars in penalties based on concepts such as pain and suffering.

While complex, the legislation makes a clearer distinction between economic damages, such as lost wages and legal bills, and non-economic damages. According to the Medical Society, lawyers have found ways to as much as double the limit, which is supposed to be just under $500,000 for fuzzy problems such as loss of companionship.

Detroit Medical Malpractice Lawyers feel that the legislation also would eliminate "lost opportunity" as reason for upping the tally. The state Supreme Court has sought a clarification of legislative intent for this terminology, but proponents of the bills say many other states don't even include it in their laws.

Patients harmed by physicians' misdiagnosis, inappropriate treatment or unreasonable delays in providing care still could sue for damages. A patient also might have a case against a doctor who didn't provide enough information, such as that a particular surgery had a 30-percent chance of resulting in paralysis.

The proposed changes deserve to be fully aired and debated, according to Grand Rapids Medical Malpractice Lawyers. It's in our best interests to make sure Michigan welcomes doctors looking for a place to set up a practice.

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Michigan Malpractice

One reason we know about the great silicosis legal scam is that a Texas judge was brave enough to expose doctors who'd been paid by tort lawyers to gin up phony diagnoses. So it is encouraging to see a Michigan judge now helping to expose evidence of similar medical fraud in asbestos claims.

This action is taking place in the courthouse of Wayne County Circuit Court Judge Robert Colombo, Jr. Asbestos defendants have been attempting to disqualify Michael Kelly, a physician who appears to have falsely diagnosed thousands of people with asbestos-related disease. Judge Colombo recently gave them an opening, which is already having a dramatic effect on state asbestos claims.

Michigan is one of the last state holdouts against asbestos tort reform. Texas, Ohio and Mississippi have passed laws or created court procedures to clean up their dockets, and new asbestos filings are declining nationally. But they're still climbing in Michigan, the venue for nearly 14% of U.S. asbestos suits and No. 1 in 2007 for new filings (996).

Enter Dr. Kelly, who is behind many of these cases. The Lansing physician is neither a radiologist nor a pulmonologist. In 1989 he failed the federal test that certifies doctors to read X-rays for lung disease. Yet according to Michigan state records, over 15 years Dr. Kelly has reported 7,323 cases of asbestos-related disease. Lawyers paid him $500 per person screened.

Unlike the silicosis doctors who did their own phony work, Dr. Kelly made the mistake of sending his clients to a hospital for X-rays. Under hospital procedures, staff radiologists read the X-rays first. When asbestos defendants obtained the plaintiff medical records, the hospital findings were included. In 88% of the 1,875 cases in which plaintiff X-rays were reviewed both by Dr. Kelly and hospital radiologists, the hospital readers found no evidence of disease. The medical records also showed that the vast majority of the lung-function tests Dr. Kelly performed failed to meet accepted standards.

Of the 91 asbestos cases Judge Colombo was set to oversee this month, Dr. Kelly provided a diagnosis in 80. In addition to giving the judge a broad picture of Dr. Kelly's work, defense attorneys also retained two respected pulmonologists to review specific cases. Jack Parker, who spent years at the Centers for Disease Control, provided the court with a blind study in which independent X-ray readers found an abnormality in only one of 68 (1.5%) X-rays that Dr. Kelly read. Dr. Kelly had found abnormalities in 88% of those X-rays.
Michigan Medicare may cover the price of X-rays.

Judge Colombo, who has been the state's asbestos judge since the early 1990s, initially balked at diving into this medical evidence -- suggesting he preferred a quick and easy settlement. But in the face of evidence that up to 90% of the cases in front of him were fraudulent, he ultimately relented and last week agreed to a hearing on Dr. Kelly. At which point something astonishing happened. Within 24-hours of the judge's decision, the plaintiffs attorneys voluntarily pulled all but one of the suits. They clearly have no interest in subjecting their "doctor," and his methods, to judicial scrutiny.

Judge Colombo should do it anyway, and get to the bottom of Dr. Kelly. It's always easier for judges to orchestrate quiet settlements than to preside over trials, which take time and effort. But the reason so many asbestos defendants have pre-emptively settled over the past 20 years is because court rules have been stacked against them. Now that they've finally cracked the lid on this diagnosing for dollars fraud, courts have a responsibility to investigate.