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Thread: Obamacare

  1. #28

    Default Re: Obamacare

    I have a feeling that if you currently have great insurance coverage through your employer, that any healthcare changes will negatively impact you directly. Either in the form of higher deductibles or higher taxes.

    However, if you are ...
    - uninsured because of a preexisting condition
    - got dropped when you got too sick
    - make just enough money to not qualify for medicaid but can't afford insurance
    - are self employed and pay for your own insurance out-of pocket

    you will greatly benefit from a good reform.

    I also think that we, as a nation, are slowly bankrupting ourselves with our current system and need to reform it.
    Last edited by Ground&Pound; 11-05-2009 at 05:43 PM.

  2. #29
    National Finalist leglace's Avatar
    Join Date
    Dec 2007
    Tampa Florida

    Default Re: Obamacare

    Amazing, the GOP writes an alternative plan that just uses a handful of prescriptive measure that can be made almost instantly, and already they outscored the 2000 page House alternative. Its not perfect since it is said to only add 3 million more uninsured, but its a great start.

  3. #30

    Default Re: Obamacare

    Not so fast.

    The CBO (Congressional Budget Office), which is head by a Republican, projects that the new Republican plan will lower the deficit $68 billion over a decade.

    However, the Democrat plan will lower the deficit $104 billion over a decade...and cover a whole lot more people.

    Look it up.

    Here's a start.

  4. #31

    Default Re: Obamacare

    Where's the tort reform in the GOP plan?

  5. #32
    Olympic Champ kr1963's Avatar
    Join Date
    Aug 2009
    Clearwater, Florida, United States

    Default Re: Obamacare

    Quote Originally Posted by quinn14 View Post
    I forget where I read it, you all can look it up, but I think insurance companies averaged a 2% profit margin. Now, 2% of a lot of money is a lot of money, but what other company runs at a 2% profit margin? I am sure people will find another website to contradict this one, but here is one showing what I am trying to say.

    Best Buy runs on that...
    that's the nature of the electronics biz.

    Many big businesses can afford slimmer margins when the gross is very high.

    However Big Pharma companies make BILLIONS per drug. Why? Insurance companies take premiums, invest them in Big Pharma companies, make lots of money & then try NOT to pay claims.

    Insurance subsidize the drug companies as most of the people not only could not pay but would not pay the prices that Big Pharma demands. It's joke as the list of side effects grow & Big Pharma spend more money paying lobbyists to protect their interests against low cost effective health care options.

    Thats why if you read HR 3200 or the Kennedy Bill that Harry Reid is harmonizing with the other senate bill you will read all this lawyer speak for infiltrating our bank accounts & personal lives & thrust upon us THEIR chosen health care solutions.

    It's another step in eroding the freedoms the constitution & bill of rights guarantee us.

  6. #33
    National Finalist leglace's Avatar
    Join Date
    Dec 2007
    Tampa Florida

    Default Re: Obamacare

    Quote Originally Posted by Ground&Pound View Post
    Where's the tort reform in the GOP plan?
    Since they are proposing something modeled after the Texas malpractice laws, it should look like what is shown below:

    This is a great start.

    <TABLE id=tblMain cellSpacing=0 cellPadding=0 width=600 border=0><TBODY><TR id=ucTemplateControl_ContentRow><TD colSpan=3>Statute of Limitations

    • No medical malpractice action may be brought more than two years from the date of the breach or tort or from the completion of treatment. Tex. Rev. Civ. Stat. Ann. Art. 4590i, ?10.01.

    • If an injury results from a negligent course of treatment, rather than a specific instance of negligence, the limitations period begins on the last date of the treatment, but if the precise date of the breach or tort is ascertainable, the limitations period begins on that date. Bala v. Maxwell, 909 S.W.2d 889 (Tex. 1995).

    • If the period begins before a claimant has reached the age of eighteen, an action may be brought at any time until the claimant?s twentieth birthday. Weiner v. Wasson, 900 S.W.2d 316 (Tex. 1995) (holding unconstitutional that part of the statute extending time for minors under twelve only until their 14<SUP>th</SUP> birthday).

    • The medical malpractice statute of limitations (2 years from the date of injury), not the wrongful death statute of limitations, (2 years from the date of death) Tex. Civ. Prac, & Rem. Code Ann. ?16.003(b), applies to claims brought for malpractice resulting in death. Bala v. Maxwell, 909 S.W. 2d 889 (Tex. 1995).

    • If the deceased patient could maintain a health care liability action at the time of his or her death, a surviving minor child can maintain a wrongful death action deriving from that claim. In that event, ?10.01 tolls limitations as to the minor's claim based upon the minor's age. Richardson v. Monts, 2002 WL 1343214, Tex.App.-Austin, 2002.

    • The medical malpractice statute of limitations applies to health care claims, even if the injury was not discovered in time to bring a cause of action. This is a strong departure from the common law ?discovery rule? which fixes the start of the statute of limitations period when the injury is discovered or should have been discovered, not when the negligence occurred. However, if the plaintiff can prove that the negligence was fraudulently concealed, then the statute of limitations can be extended. Earle v. Ratliff, 998 S.W.2d 882 (Tex. 1999).

    • The statute of limitations can be extended 75 days upon notice of intent to assert a claim. Tex. Rev. Civ. Stat. Ann. Art. 4590i, ?4.01(c).
    Cost Bond and Expert Reports

    • No later than the 90<SUP>th</SUP> day after a claim is filed, the claimant must either: file a cost bond in the amount of $5,000 for each defendant named in the action, place in an escrow account $5,000 for each defendant, or file an expert report for each defendant. Tex. Rev. Civ. Stat. Ann. Art. 4590i, ?13.01(a).

    • The expert?s report must set forth the expert?s opinion that the standard of care was violated and that this breach was the cause of the patient?s injury. If the report is inadequate the case may be dismissed. Tex. Rev. Civ. Stat. Ann. Art. 4590i, ?13.01(l).

    • If a claimant fails to comply with a deadline of this section, the court may grant a 30-day grace period if it is found that the failure was not intentional or the result of conscious indifference but was the result of an accident or mistake. Tex. Rev. Civ. Stat. Ann. Art. 4590i, ?13.01(g).

    • A claim which involves a health care provider but does not depend on an applicable standard of care may fall outside of the MIILA. For example, a patient who suffered severe injuries as a result of an attack by another patient was successful in filing a claim of common law negligence and premises liability and thus, did not need to submit a cost bond or expert report. Bush v. Green Oaks Operator, Inc. 39 S.W.3d 669 (Tex.App.-Dallas 2001, no pet.).

    • Any person asserting a health care liability claim is required to give written notice of such a claim by certified mail, return receipt requested, to each physician or health care provider against whom the claim is made at least 60 days before the filing of a suit. Tex. Rev. Civ. Stat. Ann. Art. 4590i, ?4.01.

    • Using express mail service of the USPS (instead of certified mail) is substantial compliance with the statute. Butler v. Taylor, 981 S.W.2d 742 (App. 1 Dist. 1998).
    Pre-Judgment Interest

    • Pre-judgment interest is recoverable in medical malpractice actions in Texas, unless the case settles within 180 days. Tex. Civ. Stat. Ann. art. 4590i, ?16.02.

    • Pre-judgment interest accrues from the date of injury through one day prior to entry of judgment. Id.

    • Interest accrues only on past damages, not on damages awarded to compensate for future loss. Id.

    • Pre-judgment interest is not recoverable for punitive damages. Cavner v. Quality Control Parking, Inc., 696 S.W.2d 549, 555 (Tex. 1985).

    • Pre-judgment interest is subject to the damages cap. Columbia Hosp. Corp. of Houston v. Moore, 2002 WL 1378961, (Tex., 2002).
    Expert Testimony

    • Generally, expert testimony is necessary to establish a prima facie case of medical malpractice. Duff v. Yelin, 721 S.W.2d 365 (Tex. App. 1986), aff'd, 751 S.W.2d 175 (Tex. 1988).

    • To qualify as an expert witness against a physician in a malpractice claim, the witness must be a physician with board certification or other substantial experience relevant to the claim who is practicing or teaching in an area of medicine that is relevant to the claim (or was at the time the claim arose). Tex. Rev. Civ. Stat. Ann. art. 4590i, ? 14.01. However, an expert witness need not be a specialist in the particular branch of the medical profession for which the testimony is offered. Keo v. Vu, 76 S.W.3d 725, Tex.App.-Houston [1 Dist.],2002.

    • Within 90 days after filing a notice of claim, a plaintiff must post a bond or file an expert report for each defendant. Within 180 days after filing a notice of claim, a plaintiff must provide to counsel for each defendant physician or health care provider an expert witness report or reports along with a curriculum vitae for each expert. Tex. Rev. Civ. Stat. Ann. art. 4590i, ? 13.01.
    Damage Caps

    • Texas law limits damages in a medical malpractice action for wrongful death to $500,000 (in 1977 dollars). Tex. Rev. Civ. Stat. Ann. art. 4590i, ?11.02.

    • This amount is adjusted annually for inflation, Tex. Rev. Civ. Stat. Ann. art. 4590i, ?11.04, and is now approximately $1,300,000.

    • The statute was intended to apply to all medical malpractice cases, but has been held to be unconstitutional except as applied to wrongful death and survival action cases. Lucas v. U.S., 757 S.W.2d 687, 691 (Tex. 1988).

    • Under separate law, Texas limits punitive damages in cases arising after September 1, 1995, to (a) two times the amount of economic damages, plus (b) an amount equal to non-economic damages (not to exceed $750,000) or $200,000, whichever is greater. Tex. Civ. Prac. & Rem. Code Ann. ? 41.008. The cap on punitive damages does not apply in cases of certain felonies, including fraudulent destruction or concealment of written records. Tex. Civ. Prac. & Rem. Code Ann. ? 41.008.

    • If punitive damages are awarded in a medical malpractice suit, they are subject to the cap discussed above, but are not included in the MLIIA cap. Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887 (Tex. 2000).

    • The statute bars the use of the Texas Deceptive Trade Practices Act (DTPA) with respect to negligence claims against physicians or health care providers. This prohibition is significant since the DTPA permits a consumer to recover attorney fees and enhanced punitive damages if the conduct in question constitutes ?knowing? violation of the DTPA. Tex. Rev. Civ. Stat. Ann. art. 4590i, ?12.01(a).

    • The damages cap of 4590i applies to each defendant individually, not combined. Rose v. Doctors Hospital, 801 S.W.2d 841, 846 (Tex. 1990).
    In addition to 4590i, the following areas of the law play a prominent role in medical malpractice cases:
    Collateral Source Rule

    • A claimant's receipt of benefits from a collateral source, such as insurance, does not reduce his recovery. Century Papers, Inc. v. Perrino, 551 S.W.2d 507 (Tex. App. 1977).

    • Texas does not mandate the reference of medical malpractice actions to an arbitrator or screening panel. However, the legislature has authorized counties to adopt alternative dispute resolution systems, Tex. Civ. Prac. & Rem. Code Ann. ?? 152.001 to 152.004, and pretrial mediation is routine in many Texas venues pursuant to this legislation.

    • No health care provider can require or even request that a patient sign an agreement to arbitrate liability claims without giving the patient a prescribed form of written notice that the agreement is invalid without the signature of the patient's attorney. Tex. Civ. Stat. Ann. art. 4590i, ? 15.01. This section contains serious penalties.
    Contributory or Comparative Negligence

    • Texas has adopted the doctrine of modified comparative negligence for tort claims. If the person bringing the claim is judged to be greater than 50 percent responsible for the injury, he may not recover any damages at all. If his percentage of responsibility is judged to be 50 percent or less, the claimant?s recovery is diminished in proportion to this percentage. Tex. Civ. Prac. & Rem. Code Ann. ?33.001 to 33.017.
    Joint and Several Liability

    • For incidents occurring on or after September 1, 1995, and lawsuits filed on or after September 1, 1996, a defendant may be held jointly liable only if his fault is greater than 50 percent. Tex. Civ. Prac. & Rem. Code Ann. ? 33.013.

    • The damages cap may not be multiplied by the number of culpable defendants to a single defendant who is jointly and severally liable. Columbia Hospital Corporation of Houston v. Moore, 43 S.W.3d 553 (Tex.App.-Houston [1<SUP>st</SUP> Dist.] 2001, pet. granted).
    Vicarious Liability

    • In order to establish a hospital's liability for an independent contractor's medical malpractice based on ostensible agency, a plaintiff must show that (1) he had a reasonable belief that the physician was the agent or employee of the hospital, (2) such belief was generated by the hospital affirmatively holding out the physician as its agent or employee or knowingly permitting the physician to hold himself out as such, and (3) he justifiably relied on the representation. Baptist Memorial Hospital System v. Sampson, 946 S.W.2d 945, (Tex. 1998).

    • A hospital may not be held liable for a physician's error on the theory of negligent credentialing unless it acted with malice. St. Luke's Episcopal Hospital v. Agbor, 952 S.W.2d 503 (Tex. 1997).
    Additional information on the medical liability crisis.
    Last Published: 8/29/2005
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