Althouse: Look out! Sarah's got a new Facebook entry about health care.

August 21, 2009

Look out! Sarah's got a new Facebook entry about health care.

This time, she wants the thing Obama won't talk about: malpractice law reform.

167 comments:

Chase said...: This time, she wants the thing Obama won't talk about: malpractice law reform.

Why not? Does he really, really, really like lawyers or something?; 8/21/09, 11:06 AM
John A said...: AKA Tort REform.

I have heard that Texas a few years ago included such for medical cases in its health-care legislation. With good results.; 8/21/09, 11:06 AM
Hoosier Daddy said...: Revenge is a dish best served cold isn't it.

Whoever thought some dim bulb from Alaska could be causing The One so much grief. I wonder if Obama is channeling his inner Henry II"

Can no one rid me of this meddlesome bitch???; 8/21/09, 11:08 AM
LouisAntoine said...: Medical malpractice lawsuits driving up costs is a canard. Even after Texas and Missouri passed tort reform, premiums continued to rise.

Sarah Palin couldn't govern her way out of a paper bag, resigned in her first term, and presided over the most socialist state in america. Yet her word is sacred.

The high costs of health care in america result from one thing: commodification. Just like houses shouldn't be used as ATMs, sick people aren't a business.

Some things don't, can't belong in the private sector. It's hard for market fundamentalists to accept. But it's hardly marxism. It's called social democracy, and it works. America's health care system needs serious reform. It's not about lawsuits.; 8/21/09, 11:10 AM
Saul said...: Malpractice reform is one of the key pieces to improving health care. Defensive medicine is costly and it is bad for the patient.

Malpractice should be completely eliminated. Doctors can be regulated, and bad doctors can have their licenses suspended or revoked.

Victims of malpractice should be compensated under a worker's compensation type program, without jury trials. The programs could be set up in each state. Doctors would pay a much lower premium to cover the costs to run the program.

The program would be more fair to the patients. Medical malpractice is like the lottery. There are plenty of victims of medical malpractice who don't get properly compensated under the current system. Others are overcompensated.; 8/21/09, 11:10 AM
J. Cricket said...: If Althouse spent any time actually reading legal scholarship, she would know how phony the "tort crisis" really is. But Professor Diva has no time for reading scholarly works in the areas that she blabs -- I mean, blogs -- about. No wonder that no reputable law professors have ever posted here.; 8/21/09, 11:11 AM
knox said...: I just picture her giggling at her keyboard. Who wouldn't give up the dull duties of governorship for this? Having a huge say in this debate, and singlehandedly driving an administration--and its press--crazy.; 8/21/09, 11:12 AM
daubiere said...: "she would know how phony the "tort crisis" really is."

as phony as the health care crisis?!?; 8/21/09, 11:12 AM
traditionalguy said...: She nailed has them again. As an attorney, I am not against Med Mal per se, but it is true that damages Caps would end most malpractice litigation and therefore save excessive defensive medicine tests. A Mandatory Arbitration system should be enacted along with any damages caps. Politically she has perfectly check-mated the Democrats in Congress with a clearly stated issue. The Republicans either need to nominate Palin, or they need to find and nominate her ghost writer on the facebook.; 8/21/09, 11:14 AM
Joe said...: Montaigne must be a lawyer, because only lawyers are corrupt enough to defend the current tort system. To believe, or at least assert, that the current system doesn't contribute to increased costs is to look at the sun and deny it's there. Maybe it's not a big contribute, but I don't care--it's a corrupt, evil system that affects the entire economy.

Cue all the other lawyer idiots who will now start ranting about what if I became paralyzed or some other absurdity, pretending that compensatory damages don't exist and that there is something noble in legal extortion.; 8/21/09, 11:16 AM
Joan said...: I read the note. I found it well-written and well-sourced, with on-point examples and quotes from recognized experts.

I hope it has at least as much impact as the infamous "Death Panels" note did. At the very least, it shows what a lie the "Republicans have nothing to offer" meme is.; 8/21/09, 11:16 AM
AllenS said...: Carl Dean said...
"If Althouse spent any time actually reading legal scholarship"

Carl, are you suffering from a head injury?

"There is something about August going into September where everybody in Washington gets all wee weed up!" said Obama.

Has he finally decided to stand up against Big Urine?

WV: boyerci

Ain't that the truth.; 8/21/09, 11:18 AM
Chase said...: Medical malpractice lawsuits driving up costs is a canard.

Exactly how so?

-------------------------------

she would know how phony the "tort crisis" really is.

None of seems to know how phony it is. I have 2 brothers that are physicians, partners in 2 different full service clinics. Are they liars? Please help us out here Carl.

----------------------------

No wonder that no reputable law professors have ever posted here.

Interested in your list of who you find credible Carl. Please list>; 8/21/09, 11:18 AM
Darcy said...: Crazy like a fox, our Sarah.

WV: winsci

Yeah, that's ticket. Some folks get "wee-weed" out. Sarah gets winsci.; 8/21/09, 11:18 AM
Darcy said...: *that's THE ticket

(Not enough coffee yet.)

WV: mentind (Hey! Not nice!); 8/21/09, 11:20 AM
I'm Full of Soup said...: I never used the word canard til now.; 8/21/09, 11:26 AM
Joe said...: This comment has been removed by the author.; 8/21/09, 11:28 AM
Simon Kenton said...: Chatting with an old friend who's an ER doc and hospital administrator. I don't know as malpractice awards class as a 'canard' (Mointaigne's is not a familiar use of the word for me [nor is the spelling of montaigne, if that's what she was actually trying to spell].) But malpractice awards have apparently freed Wyoming of gynecologists, PA of neurologists. He was delighted they were able to hire a neurologist who had left PA, tried NJ, and found herself happy in Colorado. He was not personally as dismayed by the cost of malpractice insurance - less a problem in his specialty - than by the pressure to practice what Palin calls defensive medicine - ordering tests and prescribing medicines with more of an eye on the courts than on patient care and cost. He said a doc practicing defensive medicine can easily run up costs many times what a non-defensive doc will, for equivalent treatment success.; 8/21/09, 11:29 AM
Saul said...: This comment has been removed by the author.; 8/21/09, 11:30 AM
Tank said...: I attended Steve Rothman's town hall in Englewood Cliffs. A local physician got up and explained that every day he orders tests he knows are a waste of money, but he also knows he must order to cover his ass, paper his file, so to speak.

I know this is true. Any doctor who will be honest with you knows this is true. So putting aside the money wasted in friv. litigation, just time and money for all of these tests is worth talking about.

Dr. O can't discuss. He's bought and paid for by the trial bar.; 8/21/09, 11:31 AM
sg said...: WSJ, 5/19/2008:

http://blogs.wsj.com/health/2008/05/19/doctors-flock-to-texas-after-tort-reform/

"Doctors Flock to Texas After Tort Reform"

In the last three years, 7,000 doctors have moved to Texas. So many doctors want to practice there that the state has had trouble keeping up with the requests for licenses.

...

Malpractice suits have plummeted. In 2003, before the caps took effect, there were 1,108 medical liability suits filed in Dallas County, the Morning News reported. Only 142 cases were filed in 2004. Last year there were 184.

Proponents of malpractice reform point to Texas as a model. The surge of doctors has helped relieved shortages in some rural parts of the state.; 8/21/09, 11:32 AM
Saul said...: This comment has been removed by the author.; 8/21/09, 11:33 AM
Saul said...: Not all attorneys are against medical malpractice reform. I am attorney and am 100 percent for it. While medical malpractive reform won't solve all of the health care issues, it would be very helpful. Insurance premiums are insanely high in many states, and that alone is a reason for tort reform. Further, yes, there are many lawsuits based on medical malpractice that result in very high damage awards that are completely unjustified.

I know a neurosurgeon who was found five percent negligent in a case where he literally did nothing wrong (the patient failed to follow his written advice to follow-up). Because the other doctor was employed by the state, there was a $250,000 cap on the doctor who allegedly did mess up. But my friend got nailed on the five percent and had to pay the balance of a $5,000,000 verdict (joint and several liability). This excellent neurosurgeon could no longer get insurance, and can no longer perform surgeries.; 8/21/09, 11:34 AM
Roger J. said...: This comment has been removed by the author.; 8/21/09, 11:35 AM
Shanna said...: Whoever thought some dim bulb from Alaska could be causing The One so much grief.

I continue to find it hilarious that she can garner such attention from facebook postings. Regardless of your political leanings, you have to be impressed.; 8/21/09, 11:37 AM
knox said...: I always thought it odd that Obama blamed frivolous medical tests on doctors' incompetence ... instead of the obvious and most prevalent cause, which is their effort to protect against malpractice suits.

I remember hearing a story years back that it was impossible to find a doctor to deliver your baby in Las Vegas because OBs had fled the sky-high malpractice insurance rates. Ah, here's an article about it, from 2002. A quote:

More than 30 Las Vegas obstetricians have closed their practices in recent months, leaving the city with about 85 obstetricians to deliver more than 23,000 babies in the next year, said Dr. John Nowins, president of the Clark County OB/GYN Society.

The Nevada State Board of Medical Examiners reports 141 obstetricians are practicing in Clark County. But many of those doctors either have stopped delivering babies altogether or have stopped taking newly pregnant patients to reduce their medical malpractice insurance costs.; 8/21/09, 11:37 AM
Chase said...: Joe,

I'm not sure that you understand me.
I am for tort reform - you are absolutely right that the current malpractice system of defensive testing is part of the rising cost of health care.

I wrote above questioning the 2 people who don't believe that tort reform is a real issue. So, unless I'm really confused, we're on the same side here.

Why do you believe that I said the opposite of that? And why are you so quick to call me something derogatory?; 8/21/09, 11:39 AM
Roger J. said...: I don't think it really possible to come up with an accurate figure for the cost of "defensive" medicine. It seems clear to me that defensive medicine is driven by the prospect of a malpractice suit. The trouble with medical testing in general is, that often tests are inconclusive because of a higher than desired rate of false positives (eg, PSA), and once you start down the testing and imaging regime you may uncover the need for more confirmatory tests. I suspect the costs are indirect; eg, high insurance rates for malpractice insurance get passed along to consumers. Putting a figure on this cost seems quite difficult.

I think Saul's approach seems like a good common sense solution.

Carl: ummm..this isnt a legal blog; there are many out there, but thisnt one. Try Volokh or Baindridge.; 8/21/09, 11:39 AM
Big Mike said...: So as a law professor, are you for or against malpractice tort reform? I'm guessing that your students are mostly against -- what with the cost of LSAT prep courses, law school tuition, etc., they need to chase the right ambulance to recoup.

Okay, time to be serious. Malpractice tort reform is wildly overdue. I'm thinking in particular of one case I heard about, where an ob/gyn doctor was told by the couple that they did not want amniocentesis because they had no intention of aborting the fetus under any circumstances. Just to be safe, the ob/gyn had them sign a release form.

Well the parents were Ashkenazim (descended from central and northern European Jewish ancestors) and the baby was born with Tay-Sachs. No matter what your position on abortion might be in the abstract, hardly anyone would back off from aborting a fetus with Tay-Sachs -- the baby will be normal for about 6 months, then die slowly and in extreme pain. Infants with Tay-Sachs are normally dead before their fourth birthday.

The distraught parents filed a wrongful death suit and despite the release they won a judgement for several million dollars. The doctor's insurance paid most of that, but the doctor's insurance went through the roof and she was forced to abandon obstetrics.

I don't intend to engage anyone in what the doctor could have done legally to further protect herself so FLS and the rest of you lawyer types can just save your fingertips. Keep in mind that making amnio mandatory introduces risks of its own -- as of a quarter century ago when my own kids were in utero the risk of the fetus being damaged by the amniocentesis procedure as nearly 1% -- individually very low but summed over the total number of births in the United States annually we're talking about a huge number of damaged babies who will need extra neo-natal care, if not lifetime medical support.

Anyway this is partly why commentators on other threads within this blog are wrong about the US being able to expand the supply of doctors to meet demand. We chase doctors out of the profession in several ways:

(1) The doctor can get unlucky and be hit with an expensive malpractice suit that chases them out of the field. We assume that this only happens to bad doctors, but even capable doctors can suffer.

(2) Medicare pays poorly, so doctors are squeezed on the income side, yet the paperwork is so onerous that they need to pay for someone to manage it. This is guaranteed to get worse under HR 3200, which adds all sorts of additional reporting requirements to healthcare professionals. Yet doctors have to recoup the cost of Medical School, and normally enter their careers hundreds of thousands of dollars in debt. So more doctors will be driven out of the field.

I've got one prediction, which is that the very best doctors will opt out of the system and enter "boutique"practice where they don't take Medicare or any insurance and charge however much they feel like. Their practice will therefore be limited to limousine liberals and country club conservatives who will get the very best care because they and only they can afford the very best care, but because these two classes provide most of the money theat underpins both parties the practice of boutique healthcare will never be stopped.; 8/21/09, 11:42 AM
TosaGuy said...: "I just picture her giggling at her keyboard. Who wouldn't give up the dull duties of governorship for this? Having a huge say in this debate, and singlehandedly driving an administration--and its press--crazy."

And because it is on Facebook it does not cost her a dime.; 8/21/09, 11:42 AM
traditionalguy said...: The dilemma is that our indidual freedoms are still based upon our right to a trial by jury. The jurors have now become trained in a MegaBall Lottery mentality and are easy to fool with John Edward's type of a drama based upon a Fake Science. Where do you think the idea for a carefully planned Global-warming Fake Science came from? The really good trial lawyers are magnificent bastards who usually find a way to win the jury. A cap on awards will drive that talent into other fields.; 8/21/09, 11:43 AM
knox said...: Tort reform and the Fair Tax alone could greatly reduce the cost of being a professional in this country ... and, as a bonus, the number of lawyers!

Hugs, lawyers, I know you're really not *all* turds!; 8/21/09, 11:48 AM
Roger J. said...: A bit off topic, but Big Mike has put his finger on one of the major social downsides to a government run program (that permits the purchase of private insurance): The rich will be able to afford insurance, will be seen in those botique practices thus widening the gap between rich and everybody else.; 8/21/09, 11:49 AM
Balfegor said...: To provide some context here, I tried to find what total medical malpractice premiums are in the US, annually -- the only source I could find in 5 minutes of googling as this column, which sizes the total medical malpractice litigation costs at $30 billion a year. Premiums are (I would assume) somewhat higher than that, both because the insurance companies have operating expenses and because there are probably lots of claims resolved without litigation. For comparison, the subsidy provided for in the House bill works out to about 70 billion/year (albeit heavily back-loaded and increasing year on year), so 30 billion/year is definitely quite significant, in terms of the scale of the reform proposals we're dealing with. Obviously, we can't send the 30 billion to 0, but if we halve it, that's still quite significant.

Defensive medicine is probably the bigger cost driver here, and it's hard to evaluate the scope of that problem. But in any event, people who are trying to argue that medical malpractice is not a significant issue here is simply engaging in willful blindness.; 8/21/09, 11:49 AM
Justin said...: As an attorney, I am not against Med Mal per se...

As an attorney, you should know that medical malpractice lawsuits do not drive health care costs up. There is a lot of scholarship out there on this.

Ann, do you seriously buy into this shit? Why are you so obsessed with everything Sarah Palin does or says? You have really lost it. This blog used to be smart. Now it's nothing but right wing drivel. No better than the MSM; just approaching from a different direction.; 8/21/09, 11:50 AM
kent said...: Sarah Palin couldn't govern her way out of a paper bag, resigned in her first term, and presided over the most socialist state in america.

... and yet, every single time Sarah speaks, you and Obama both wee-wee yourselves in naked, Pavlovian terror.

That's just so darned adorable, really.; 8/21/09, 11:50 AM
Mark Clifford said...: I find it interesting that the same people who point out how great other health care system are, can't see that all of those other systems do not allow significant medical malpractice awards. Doctors and pharma are regulated other ways.

-mca; 8/21/09, 11:53 AM
Dust Bunny Queen said...: I just picture her giggling at her keyboard.

Me too! In her bunny slippers with a good cup of coffee on the desk.

Who wouldn't give up the dull duties of governorship for this? Having a huge say in this debate, and singlehandedly driving an administration--and its press--crazy.

LOL. Revenge is sweet.; 8/21/09, 11:57 AM
Joe said...: Chase, I apologize. I misread your comments.; 8/21/09, 11:58 AM
Chase said...: This comment has been removed by the author.; 8/21/09, 11:59 AM
Chase said...: It's cool, Joe. Thanks.; 8/21/09, 12:01 PM
former law student said...: Universal health care will be good for doctors. Defensive medicine is practiced to make sure that doctors meet the "standard of care." A public option would establish a standard of care that all doctors and hospitals could point to when defending themselves against malpractice. Single-payer would relieve physicians of excess liability -- the government would set a compensation schedule for malpractice claims.; 8/21/09, 12:02 PM
Chase said...: As an attorney, you should know that medical malpractice lawsuits do not drive health care costs up. There is a lot of scholarship out there on this.

Please cite. I'll contact my brothers for counter evidence to your claims. Meet back here.

Honestly, why do the 3 anti-tort reform commenters here so far seem so all worked up about defending the current malpractice system? And why are they so derisive. Who are they trying to defend?

I'll bet they're just drive-bys, shooting shotgun style whatever they can hopefully hit. Won't hold my breath for any solid responses from any of them, though I would love to be proven wrong about that and have an actual, rational dialogue.; 8/21/09, 12:03 PM
Dustin said...: What are the odds Sarah actually wrote this? If she did, then she's clearly very intelligent. Something about her fan loyalty creeps me out, but I know it's just a reaction to all the jerks who were pretty kooky in their hatred of Palin.

My guess is she did not write this, but then again, Bill Ayers probably wrote Obama's memoirs.

Whoever wrote these few facebook messages that have completely dominated the democrats lately: that person would be a good presidential candidate. They're probably butt-ass ugly, though.; 8/21/09, 12:03 PM
kent said...: Hoyer: Public option may have to go.

I can't even pretend that I'm not enjoying the holy living heck out of all of this. ;); 8/21/09, 12:04 PM
traditionalguy said...: Anti-Althouse...Where does one go to find studies proving a fake science that Capping Damages in Med Mal has no cost savings? I know for sure that it causes most suits to never be filed by a contingent fee lawyer. Wrongful death cases are still lucrative, but other recoverable over time injuries from medical practice negligence are seldom brought to a trial because a reward of a third of $250,000 is too small to offset the risks of getting little or nothing at trial.; 8/21/09, 12:04 PM
former law student said...: why do the 3 anti-tort reform commenters here so far seem so all worked up about defending the current malpractice system?

Why do conservatives decry it? The current malpractice system enforces responsibility on individuals. Tort "reform" is a plea for governmental interference by limiting damage awards by fiat. Conservatives supposedly believe in individual responsibility, and are against governmental interference.; 8/21/09, 12:05 PM
The Dude said...: Not all lawyers are turds, eh? Cue the old punchline - yeah, but 99% of them ruin the reputation of the rest of them.

No, seriously, some of my best friends are lawyers.

WV - bectorm - damn near killed 'em!; 8/21/09, 12:07 PM
Dust Bunny Queen said...: What are the odds Sarah actually wrote this? If she did, then she's clearly very intelligent

Why couldn't she have wrote it? Because she didn't write with an accent and throw is a bunch of 'ya' instead of 'you', 'ta' instead of 'to' and 'youbetcha' and colloquialisms?

People generally write in a different voice or style than they do when speaking. Also when speaking to an audience, you gear your speech to be on a level with your audience. Any good sales person knows this. Obama evidently doesn't or he tries to hard and falls flat.

You don't talk over your audience's head and you don't talk down either Palin has made her political career in Alaska and therefore her verbal speech is geared to Alaskans. I suspect that this will change as she becomes more of a National politician.

The media and others who want to pigeonhole Palin as stupid focus on her provencal accent and try to marginalize her. They do the same thing with normal Americans who may be from the South or have a Texas drawl. The media is all about form over substance which is why we have this puff of smoke as a President.

There is no reason to think she couldn't have written this piece, merely because she has an accent when speaking and her verbal style is less crisp and succinct than some are used to hearing.

LOL: wv = derned derned if ya do and derned if ya don't; 8/21/09, 12:13 PM
Triangle Man said...: Defensive medicine is costly and it is bad for the patient.

This may be common sense, but when stacked up against other sources of medical costs a CBO report on increasing health care costs said that defensive medicine "[does] not appear to explain a significant part of the growth in spending".; 8/21/09, 12:13 PM
PJ said...: @Anti-Althouse: As an attorney, you should know that medical malpractice lawsuits do not drive health care costs up. There is a lot of scholarship out there on this.

Perhaps you'd care to step up to a Sarah Palin level of documenting this claim?

wv: kingsxy Of course, and queensxx; 8/21/09, 12:15 PM
bearbee said...: We need to address a REAL bipartisan reform proposition that will have REAL impacts on costs and quality of patient care.

Peeple, peeple, peeple (following through on the wee-weed comment)
Doc O HAS done all this PLUS giving Sarah P a signficiant role in helping the administration to bring down costs:

Here is latest WH News release.; 8/21/09, 12:15 PM
Big Mike said...: @FLS, still haven't caught the right ambulance yet, eh?; 8/21/09, 12:17 PM
cryptical said...: former law student said: Tort "reform" is a plea for governmental interference by limiting damage awards by fiat.

You previously pointed out that single payer will have the same effect, so since single payer is off the table (according to Obama) you're for this plan to cut costs, correct?; 8/21/09, 12:17 PM
Joe said...: Why do conservatives decry it? The current malpractice system enforces responsibility on individuals.

Because it isn't about enforcing responsibility; it's about a small minority enriching themselves using the force of government. Explain how it's remotely fair for some entity to be found 5% at fault, or even zero percent, and yet be forced to pay the bulk of the damages (compensatory and punitive.)

How about one simple reform: outlaw contingency fees for civil suits.

If, as you said, this is enforcing personal responsibility, surely lawyers wouldn't mind surrendering a percentage in exchange for this laudable goal.; 8/21/09, 12:18 PM
Anonymous said...: On a personal note, a general practitioner I know pays $30,000 per year for malpractice insurance. Patients, taxpayers and insurance companies pay that cost, of course.

To put that cost in perspective, her office is in one of the poorest counties in Indiana where the per capita income is just over $16,000.

To keep her insurance, she orders a lot of tests that are not necessary, but they do help cover her butt in case she gets sued.; 8/21/09, 12:19 PM
Chase said...: Why do conservatives decry it? The current malpractice system enforces responsibility on individuals. Tort "reform" is a plea for governmental interference by limiting damage awards by fiat. Conservatives supposedly believe in individual responsibility, and are against governmental interference

Fair question. Because the jury system is not set up to handle judgments equitably in any realistic form. A child born mentally retarded due to the wrong use of forceps ( my neighbor's daughter) receives $ 370,000 + while similar situations receive anywhere from 26,000 to several million. It becomes a game - John Edwardsing the system, and the overall effect does little to improve the safety or health of the state of medicine.

As long as there are no caps, there will always be sharks gaming it as a lottery. You know that full well, fls. Please spare us the unrighteousness indignation,; 8/21/09, 12:21 PM
former law student said...: Big Mike said...
@FLS, still haven't caught the right ambulance yet, eh?

Conservatives are unabashed that their argument against malpractice claims rests on the assertion that ordinary people are easily bamboozled.; 8/21/09, 12:21 PM
Roger J. said...: I am guessing we have some drive obamabots--trial lawyerbots who at this point are long on assertion and short on citations re costs of tort reform--Since I have some free time today what with my partner gone to russia for a week, I will do some research myself and see what I can find.; 8/21/09, 12:27 PM
former law student said...: How about one simple reform: outlaw contingency fees for civil suits.

Sure. Let malpractice insurers finance both sides of the lawsuit equally, on a billable hours basis.; 8/21/09, 12:28 PM
Jason (the commenter) said...: I think Palin is talking about helath care very intelligently; one issue at a time--breaking it down into pieces, so everyone can understand what is going on.

She's forced to justify each of her measures with specifics and it opens the topic up for debate by people who know what they are talking about. Isn't this how we wish Congress handled every issue?

Obama could learn a thing or two from her.; 8/21/09, 12:32 PM
Roger J. said...: This comment has been removed by the author.; 8/21/09, 12:33 PM
Laika said...: former law student said...
Universal health care will be good for doctors. Defensive medicine is practiced to make sure that doctors meet the "standard of care." A public option would establish a standard of care that all doctors and hospitals could point to when defending themselves against malpractice. Single-payer would relieve physicians of excess liability -- the government would set a compensation schedule for malpractice claims.

*****************
The Canadian system keeps the cost of malpractice insurance down by limiting payouts to $300,000, and forcing plaintiffs to pay for initial investigations, which discourage nuisance suits before litigation moves into court. So there are about 100 malpractice suits in the entire country each year.

http://tinyurl.com/nrwe5x

Universal healthcare and "defensive medicine" are completely at odds with one another. Universal healthcare means the patients are expenses, not customers, so rationing and limiting tests is absolutley necessary to keep costs down.

Currently, the SHORTEST waiting lists for MRI tests in Ontario are at 107 days. But, that's ok, right? Because the target is 28 days !

http://tinyurl.com/nahnrf; 8/21/09, 12:33 PM
Triangle Man said...: On a personal note, a general practitioner I know pays $30,000 per year for malpractice insurance. Patients, taxpayers and insurance companies pay that cost, of course.

To put that cost in perspective, her office is in one of the poorest counties in Indiana where the per capita income is just over $16,000.

Maybe your friend should get some competing quotes. It should be between $9 - 12k according to this. Apparently Indiana has relatively low med mal insurance rates because of regulations that have been in place since 1975.; 8/21/09, 12:33 PM
Lem Vibe Bandit said...: The attempt at disputing Sarah’s death panel discovery/attack drove much of the conversation ever since she said it.

They put Sarah on the driver seat.

Now that she has wet our appetites, this is her follow thru. Second edition.

Drill baby drill ;); 8/21/09, 12:34 PM
hombre said...: Montaigne must be a lawyer, .... To ... assert, that the current system doesn't contribute to increased costs is to look at the sun and deny it's there.

This is not a description of a lawyer, it is a description of a leftist ideologue -- that is, Montaigne.

He doesn't know what he's talking about.

I'm a lawyer, living in Texas. Texas "tort reform" hasn't lowered premiums because it isn't effective legislation. Moreover, it is not just about lawsuits and treatment. The administrative costs incurred by medical facilities and practitioners trying to protect themselves with useless paperwork -- designed by lawyers -- are significant.

Democrats and their tools oppose tort reform because, and only because, trial lawyers contribute millions to help Democrats buy votes.

WV dillityn: A liberal "expert."; 8/21/09, 12:35 PM
Ann Althouse said...: I took no position on malpractice reform in this post. It's not my area of expertise, but: 1. I think there should neither be too much nor too little litigation, and 2. Both my parents died as a result of medical malpractice and neither brought a lawsuit (and could not bring a lawsuit).; 8/21/09, 12:35 PM
Laika said...: Check out Ontario's wait list website. This is what health care rationing looks like.

http://www.health.gov.on.ca/transformation/wait_times/public/wt_public_mn.html#; 8/21/09, 12:36 PM
traditionalguy said...: FLS... The stark fact that has emerged from debating the Flaws in health care delivery and cost inflation is that NO solutions are to be allowed until the free market based system collapses from a lack of enacting very easy reform solutions. I attribute this to the CRISIS CREATION department of DC politicians. Both Democrats and republicans have always used threats to generate contributions from the players in the Free Market industries as a cost for opposing or favoring some wild scheme that has no chance of passage. The new Soros/Obama development is that they do plan to enact the wild schemes so that the the Rev Wright's proclamtion can come true. IMO Pelossi, Soros, Obamado see a chaos from a god-damned America to truly be the greatest moment of their decieved lives. That is why Sarah Palin now has an opportunity to become President... she is not decieved at all.; 8/21/09, 12:36 PM
Chase said...: Conservatives are unabashed that their argument against malpractice claims rests on the assertion that ordinary people are easily bamboozled.

Damn Straight. That's why we have laws, fls, isn't it?; 8/21/09, 12:37 PM
Methadras said...: Nelson: Ha-Ha!!!

wv = gonatimo = Where enemy combatants and victims of US colonial imperial torture should really held for life.; 8/21/09, 12:37 PM
Roger J. said...: FLS: I submit juries are easily bamboozled given the nature of legal argumentation and the public's general lack of knowledge of statistical "proof." The former president of the AMA, Dr Marcia Angel wrote about this with respect to the award against dow corning for silicone implants--there was absolutely NO statistical evidence to suggest women with implants were any more at risk the population as a whole.

I remain convinced that trial lawyers as a class are a slight cut above journalists--but its a very small cut.; 8/21/09, 12:37 PM
Bruce Hayden said...: Universal health care will be good for doctors. Defensive medicine is practiced to make sure that doctors meet the "standard of care." A public option would establish a standard of care that all doctors and hospitals could point to when defending themselves against malpractice. Single-payer would relieve physicians of excess liability -- the government would set a compensation schedule for malpractice claim.

Of course, you would also have death panels with single payer. Can't run it without. Basic economics 101. But, hey, killing off granny a bit early is worth it, if some illegals don't have to pay for their health insurance.

But, yeh, what would invariably happen is that the doctors would order up any possible test they could think of, for example, CAT scans for the flu, JIC. And then depend on the government to deny all those ridiculous tests. Then, when sued for malpractice, they could point at all the tests they ordered that got rejected by the government.

But I am not sure that they would really like that. For one thing, the paperwork overhead is going to skyrocket, above where it is right now (and it is huge already). All that fraud that isn't being pursued with government programs? Far higher than any difference in overhead between them and private insurance companies. More paperwork is guaranteed to catch it, and if it doesn't, it isn't the fault of the bureaucrat who designed the paperwork (and he doesn't have to fill it out either).

But merely having a single payer is not going to really affect the standard of care, from a legal point of view. Rather, it just will change what gets paid for.; 8/21/09, 12:40 PM
former law student said...: the doctors would order up any possible test they could think of, for example, CAT scans for the flu, JIC. And then depend on the government to deny all those ridiculous tests.

This kitchen sink approach would violate Obama's intent for doctors to share best practices, which even Gingrich conceded would reduce health care costs.; 8/21/09, 12:47 PM
Unknown said...: Tort reform makes sense to me too - and I agree with the "lottery" analogy. My suggestion is to award the amount that is being sought in the lawsuit - for any type of lawsuit - to the party that wins the case. And if a lawyer/ law firm is providing the financial support to pursue or defend the lawsuit - then they would be liable for the award too.

Like a poker game, everyone involved in the lawsuit now has the same financial stake at risk. Would that stop all frivolous or inflated damages lawsuits? Or stop juries from reaching head-scratching decisions? Not at all. However, it should over time reduce either the number or the size of awards for lawsuits that were frivolous or inflated. Plus, it strikes me that some of the legal profession could be supportive of that change because they would now have double the number of potential clients to represent on a contingency basis.; 8/21/09, 12:51 PM
Lem Vibe Bandit said...: A state college, swimsuit contestant is kicking the Presidents ass.

I was going to say “dealing an end of life” blow… But then I remember how MSNBC would put that.; 8/21/09, 12:53 PM
Anonymous said...: T-Man,

Thanks for the link.

If I'm reading it correctly, an OB/GYN is paying around $58,000/year. Wowza!; 8/21/09, 12:53 PM
Bruce Hayden said...: How about one simple reform: outlaw contingency fees for civil suits.

Sure. Let malpractice insurers finance both sides of the lawsuit equally, on a billable hours basis.

Ok, I see the logic. Convert it from a defendant always loses situation to a defendant always loses but differently.

What we really need is a loser pays system, where the plaintiff has to pay at least some of the defendant's costs if he loses. I would suggest not all, since defendants have an incentive to spend more than plaintiffs in this sort of case on legal talent, since they have a big downside if they lose, while the plaintiffs have none.

The problem right now is that it is lose/lose for the defendants. If they win, they only have to pay their attorneys' fees and costs. But if they lose, they pay those PLUS the damages. On the other hand, defendants are mostly in a win/no-lose situation, where if they win, they win big, but if they lose, it doesn't cost them anything. Their attorneys are in a heads they win big, tails they only lose their time, and the multiplier is usually such (through the contingency percentage) that they win several times the value of their time.; 8/21/09, 12:54 PM
Anonymous said...: This comment has been removed by the author.; 8/21/09, 12:58 PM
LouisAntoine said...: I don't oppose tort reform, and never said I did! I just think that saying tort reform is the best way to reform health care is typical Republican bullshit. Even if it's a good thing to do, it doesn't help a single person who can't afford insurance get insurance. That's because INSURANCE COMPANIES POCKET THE DIFFERENCE after tort reform is passed. Not a penny of the savings go to the consumer. And why is that? It's because insurance companies want to make money, not care for people.; 8/21/09, 1:00 PM
Anonymous said...: Someone, quick! Refresh my memory on how much money the trial lawyers contribute to the DNC et al and then tell me why tort reform wouldn't be a BO priority.

wv = dipapp, software for trolls; 8/21/09, 1:00 PM
former law student said...: Their attorneys are in a heads they win big, tails they only lose their time, and the multiplier is usually such (through the contingency percentage) that they win several times the value of their time.

Do you not see how this weeds out nonmeritorious suits? Or do you -- rather oddly for a lawyer --value lawyers' time at zero?

How are you compensated? By the hour, flat rate, or only if the invention proves successful in the market?; 8/21/09, 1:01 PM
Bruce Hayden said...: This is actually going to be very fascinating to watch how it plays out. I think that Palin is still driving the debate, and doing so very well.

We already are seeing the push-back position from those on the left with the commenters here who deny that there is a malpractice problem and that abusive malpractice lawsuits are part of the problem with the cost of healthcare today.

Their problem is going to be that the American people just aren't going to believe them. Sure, a bunch of "experts", ranging from the President down, are going to opine that malpractice lawsuits have no impact on health care costs. But the people know better. There are just too many cases where doctors flee states because of malpractice insurance, and then return after tort reform. And any doctor who stands up and claims that he never considers malpractice liability when he orders tests is going to be laughed at.

And I think those on the left are going to just dig themselves deeper and deeper with trying to defend the undefendable.

Go girl go.; 8/21/09, 1:01 PM
Balfegor said...: Why do conservatives decry it? The current malpractice system enforces responsibility on individuals. Tort "reform" is a plea for governmental interference by limiting damage awards by fiat.

I think plenty of conservatives would be happy with a loser-pays system, where plaintiffs (and plaintiffs' lawyers) had to pay doctors' legal costs when they filed nuisance suits. The Canadian system requiring the plaintiff to pay for the initial investigation also seems worthwhile. But capping damages is the simplest solution, conceptually, even if it comes out of the same boneheaded family of solutions as minimum wage laws and 70's price controls. To the extent it has a justification, I think it's probably that the pool of physicians is controlled by government regulation (licensing restrictions, etc.), rather than it being a truly unfettered medical services market, where full recovery would be be appropriate.; 8/21/09, 1:08 PM
Ignorance is Bliss said...: fls said...

Why do conservatives decry it? The current malpractice system enforces responsibility on individuals. Tort "reform" is a plea for governmental interference by limiting damage awards by fiat. Conservatives supposedly believe in individual responsibility, and are against governmental interference.

Lawsuits are not about individual responsibility. The are a chance for 12 people ( whose selection skews the group toward those with free time on their hands ) to decide whether or not to take money from a rich person or company, and give it to someone with a sob story.

I was on a jury for a wrongful death lawsuit about a year ago. The plaintiff's lawyer was suggesting an award of $911,000.

After 4 days of trial, we went to deliberate. I considered the case borderline frivolous, no way that the defendant was liable. We took a quick vote before discussing the case, just to see where we stood. Nine of the twelve jurors voted that the defendant was liable.

Once we started discussing it, none of those people could point to anything in the judge's explanation of the law that would justify that position. But a teenager had died ( of a drug overdose ) and if the defendant had called 911, he might have been saved. ( Never mind that the defendant had no way of knowing that the teen had taken the drugs that killed him, nor any reason to think that he was unwell. )

It took ~10 minutes of reasoning for 7 of the 9 to change their minds, and another 45 minutes for the other two, but we finally settled on not liable.

So while I do favor individual responsibility, and oppose government interference, I don't trust juries.

But, if you want to show up at a protest with a sign reading "Keep the government out of the judicial branch", that's up to you.; 8/21/09, 1:10 PM
Joe said...: I just think that saying tort reform is the best way to reform health care is typical Republican bullshit.

Most Republicans aren't saying it's the best [or only] way; they're saying it's one way and that it has much more merit than politicians and the liberal establishment give credit for.

The biggest puzzle is that this and a few other measures weren't in any of the bills and have been rejected out-of-hand by the politicians. (I'm being facetious--it's not a puzzle at all.); 8/21/09, 1:12 PM
hombre said...: fls wrote: Tort "reform" is a plea for governmental interference by limiting damage awards by fiat. Conservatives supposedly believe in individual responsibility, and are against governmental interference.

The courts are government entities that specialize in interference. Tort reform involves regulating those entities and their interference so that they cannot be misused to the detriment of the community.

Malpractice awards covered by insurance have little to do with individual responsibility and, indeed, insurance settlements may allow incompetent practitioners to avoid professional sanctions.

flsBS.; 8/21/09, 1:16 PM
KCFleming said...: This comment has been removed by the author.; 8/21/09, 1:21 PM
KCFleming said...: There are many things contributing to shortages of doctors in primary care, general surgery, pediatrics, obstetrics, neurosurgery, and other specialties.

1. Bad planning by the US government, which reduced funding for training slots for medical residencies, and thus medical schools put a cap on enrollments in the 1980s and 1990s. Their estimates were wrong, as it turns out.

2. The average med student graduates with $150,000 in education debt, reaching to $250,000 among some with additional training. They can't afford to practice certain lower-paying specialties.

3. Lots of practices, especially Medicare, lose money, as Althouse posted awhile back:
"I calculated that every time I have a Medicare patient it’s like handing them a $20 bill when they leave."

4. Escalating med-mal premiums have driven doctors to retire early, shut down their businesses, or reduce the scope of their practices.

So, again, I am proud to report that none of my three kids will be doctors.; 8/21/09, 1:22 PM
traditionalguy said...: Montagne...It's worse than you think. The local Publix Supermarket has been pocketing money for running a food distribution system. When will they ever learn that all people are willing to work diligently and work intelligently in unselfishness for angelic people like you, who apparently expect everything for free. The answer my friend is blowing in the wind, along with the dust from the bodies of 300,000,000 worked to death at gun point or murdered citizens of the Marxist experiments, like you reccommend, over the last 90 years.; 8/21/09, 1:24 PM
Big Mike said...: I think there should neither be too much nor too little litigation.

But, Professor, does anybody know how to determine where that point is? I think right now we have too much, and too much that is driven by junk science (John Edwards comes to mind). But how do we drive it down to the point you have in mind?

And I'm sorry about your parents.; 8/21/09, 1:33 PM
former law student said...: 2. Both my parents died as a result of medical malpractice and neither brought a lawsuit (and could not bring a lawsuit).

This is sad, of course, but not suing would seem reasonable even if it were possible: Pain and suffering awards should be limited to those whose quality of life has been damaged by doctors' malpractice.; 8/21/09, 1:42 PM
Anonymous said...: "What we really need is a loser pays system, where the plaintiff has to pay at least some of the defendant's costs if he loses."

That's sensible, and will deter frivolous plaintiffs seeing nuisance value.

Yes, Sarah is driving the debate, because she, or her writer, is asking factual questions, as opposed to You Know Who.

I mean, she's a dumb hick and prolly a racist...just in case you were going to report me to the fishy line.; 8/21/09, 1:46 PM
Bruce Hayden said...: The problem with medical malpractice cases is not actual damages, but punitive damages and damages for pain and suffering. That is where the lottery system comes in. And, limitations on punitive damages and the pain and suffering are a big part of tort reform.

Without meaningful limits on these types of damages, you have a John Edwards convincing juries to fry OB/Gyns for failing to do C sections, when there was an adverse result, even if it turns out that there was no statistical correlation between the supposed cause and the damage. And then a jury looks at the poor parents and the poor suffering kid, and they feel really really sorry for them, and since it isn't even the doctors money (and he was evil to not do the higher priced C-Section anyway), they award huge non-economic damages.

FLS asked about my practice. Frankly, it is really, really, hard to incite a jury to award huge non-economic damages to clients in the patent world, since most often, the parties are corporations. They are far harder to garner sympathy for. It does happen.

But it happens a lot more in the rest of the tort world, and esp. in the medical malpractice part of it, where plaintiffs are invariably sympathetic. They have been damaged, or they likely wouldn't be suing. And therefore, parading them in front of a jury often inflames their passions.; 8/21/09, 1:51 PM
nina said...: There is no one universal system of joint and several liability. In many states, you have to be at least 50% liable to be held to the entire damage award. The rationale for this? It's simply the following: you have an injured party. The injury is as a result of malpractice (as measured by the average doctor performing this procedure). Between who should pay -- the uninsured victim, with huge medical expenses or the insured doctor, many states have said -- the doctor.

If we have universal health insurance, the need for large medical care awards will diminish and perhaps go away.

Before you blame all the victims of malpractice and call them frivolous, remember that they were injured as a result of negligence and even if they have a full award, they will never see all of it (court and attorney's fees). That there are frivolous law suits -- yes. There are frivolous law suits in nearly every area of law. Judges have a great deal of power to make these go away and also to reduce huge jury awards.; 8/21/09, 1:53 PM
Scott M said...: @Hoosier Daddy
I wonder if Obama is channeling his inner Henry II

Can no one rid me of this meddlesome bitch???

That was pretty damned funny.; 8/21/09, 1:55 PM
Rich said...: I buy that caps on medical malpractice recoveries could very well reduce the incidence of defensive medicine and drive down costs.

But as for insurance premiums, not so much.

In California MICRA was passed in 1975, limiting non-economic damages in a med mal case to $250,000. This has not been indexed for inflation, by the way, so today in 2009 the same limit applies. This did undeniably impact the more seriously injured more, for the simple fact that if you suffered a an injury by a negligent doctor which had a “pain-and-suffering” value of, say, $100,000, you would get fully compensated, but if a negligent doctor put you in an iron lung for the rest of your life, your seven- or eight-figure P&S recovery is capped for all time at $250,000.

That’s a bit unjust, but there ought to be a payoff in terms of lower premiums and the residual effects from that. Except in California, premiums continued to rise after MICRA was passed; the insurers just pocketed the difference along with their defense counsel. It was not until 1988, when Prop 103 passed (which regulated, you know, insurance premiums) that premiums finally dropped. See here for details. It appears a similar experience occurred in Texas.

But yes if you want to reduce defensive medicine then by all means do away with med mal liability. We have seen how well doing away with liability has worked in, say the ERISA world.; 8/21/09, 1:56 PM
Bruce Hayden said...: Malpractice awards covered by insurance have little to do with individual responsibility and, indeed, insurance settlements may allow incompetent practitioners to avoid professional sanctions.

Maybe to some extent. But they are really separate sanctions on unprofessional behavior.

I wouldn't mind some doctors chiming in here, but my understanding is that a lot of docs insist on controlling their defense, at least to the level of whether or not to settle. It appears that malpractice carriers are often far quicker to offer settlement than the doctors involved. And that is partly for their good name, and partly probably for their future malpractice premiums.; 8/21/09, 1:56 PM
Bruce Hayden said...: That’s a bit unjust, but there ought to be a payoff in terms of lower premiums and the residual effects from that. Except in California, premiums continued to rise after MICRA was passed; the insurers just pocketed the difference along with their defense counsel. It was not until 1988, when Prop 103 passed (which regulated, you know, insurance premiums) that premiums finally dropped. See here for details. It appears a similar experience occurred in Texas.

The problem with that theory is that it doesn't fit with basic economics. Why, with a glut of attorneys right now, wouldn't some other lawyers come forward and offer to defend for less? And, if the profits really are that obscene, then why wouldn't other insurance companies jump into the market? And if all the insurance companies are in cahoots, then why wouldn't other smart investors start their own insurance companies? And, in particular, why wouldn't a bunch of (rich) doctors who think they are paying too much for malpractice insurance do so?; 8/21/09, 2:01 PM
KCFleming said...: CORRECTION:
"1. Bad planning by the US government, which reduced funding for training slots for medical residencies, and thus medical schools put a cap on enrollments in the 1980s and 1990s. Their estimates of a coming glut of physicians were wrong, as it turns out."

An aside, we are apparently going to be giving the same doofuses (who underetimated the exploding and unsustainable Medicare spending and the imploding number of doctors) the power over 20% of the economy.; 8/21/09, 2:03 PM
Synova said...: fls: "Single-payer would relieve physicians of excess liability -- the government would set a compensation schedule for malpractice claims."

I think this is why Obama won't talk about it. He doesn't want to bring to anyone's attention the fact that when our health care is run by the government people will not be able to sue for outrageous damages. He *needs* all the people who erupt into painful cries at the mere notion that someone won't be able to sue the evil doctor that crippled them for life to spend their time crying about the poor and oppressed in a *useful* way. And it simply wouldn't do if he pointed out that government health care doesn't *avoid* tort reform, it trumps it.

Now... that said...

We can have the tort reform *without* giving over the whole business to the government to run with its typical efficiency and competence.

We can have tort reform and stop chasing our doctors out of our cities and out of the profession. We can lower costs by lowering malpractice insurance. We can lower costs by reducing, at least slightly, excessive defensive testing.

So why not at least start there?; 8/21/09, 2:05 PM
Alex said...: Why not just outlaw the medical insurance industry since they're so EVIL? I mean I've had enough of this, I'm tired. FUck it. Let's institute Communism, let's hand over the country to the fuckers already. I can't fight anymore.; 8/21/09, 2:06 PM
Bruce Hayden said...: Before you blame all the victims of malpractice and call them frivolous, remember that they were injured as a result of negligence and even if they have a full award, they will never see all of it (court and attorney's fees). That there are frivolous law suits -- yes. There are frivolous law suits in nearly every area of law. Judges have a great deal of power to make these go away and also to reduce huge jury awards.

True. However, merit is not a black and white issue across the board. Rather, there are very egregious cases, somewhat egregious cases, somewhat less egregious, .... somewhat frivolous, fairly frivolous, very frivolous cases, and everything in between. Judges only really can address the most frivolous in a summary manner. And similarly with verdicts.

This is where the lottery system comes in. When you combine a plausible case with a sympathetic plaintiff/victim with a silver tongued attorney, a marginal case can turn into a gold mine (just look at John Edwards, making tens of millions of dollars on what turns out to not have been malpractice).; 8/21/09, 2:08 PM
Bruce Hayden said...: Synova

Obama isn't addressing tort reform because one of the groups that gave him the most money to get elected were the contingency fee tort attorneys.

This has always been the elephant in the room that no one was talking about, and everyone was talking around, until Mrs. Palin pointed out the obvious.; 8/21/09, 2:11 PM
Chip Ahoy said...: I found Palin's article well-written, with complete sentences even, and words with all their letters arranged logically subject, verb, object. The whole thing could be interpreted into any other language with ease and with no loss of meaning. Plus it spared me the unease of listening to her vocalize.

In fact, she makes a lot more sense than her detractors do here who've become expert at avoiding addressing directly the issues she raises.

Oh. Oh. Oh. Hang on. I feel a Dylan coming on.

𝄢 ♩♬♪

I laid on a dune I looked at the sky
When the children were babies and played on the beach
You came up behind me, I saw you go by
You were always so close and still within reach.

(strum strum strum strummy strum)

Sara(h), Sara(h)
Whatever made you want to change your mind
Sara(h), Sara(h)
So easy to look at, so hard to define.

... 𝄢 ♩♬♪

Sara(h), Sara(h)
Scorpio Sphinx in a calico dress
Sara(h), Sara(h)
You must forgive me my unworthiness.

Now the beach is deserted except for some kelp
And a piece of an old ship that lies on the shore
You always responded when I needed your help
You gimme a map and a key to your door.

Sara(h), Sara(h)
Glamorous nymph with an arrow and bow
Sara, Sara
Don't ever leave me, don't ever go.

.... 𝄢 ♩♬♪; 8/21/09, 2:19 PM
Der Hahn said...: Las Vegas medical mafia

HT: Protein Wisdom

The insurance industry battles some $80 billion in fraud annually, from staged auto accidents to phantom patients and nonexistent clinics billing for procedures that never happen. In a typical scheme, a victim might collude with his lawyer to exaggerate his injuries a little. But in Las Vegas, the accident victims knew nothing of the alleged conspiracy. More important, at least from the insurers' point of view, cases they estimated would max out at $1 million were getting jury verdicts for seven times that amount. "Your first reaction is, 'It's not possible. It can't be that pervasive,'" says Nelson Cohen, an attorney for State Farm Insurance.; 8/21/09, 2:20 PM
Roger J. said...: Re the costs of health care litigation and claims of evidence that it doesnt affect cost of health care. As in most cases, the evidence is decididly mixed. Rather than try to come up with an answer (which I think is there is NOT consensus), you may google "health care litigation" and read thru the citations and reach your own conclusions. Anything with a dot com ending is most likely a lobby group. Dot org or Dot Gov are the better sources and the US HHS Report seems to me to be the most unbiased.

From a research standpoint, this is where a serious scholar would do a literature review to enumerate the articles and categorize their findings. Me? there is beer to be drunk and dead irishmen to be toasted.

Bottom line for me based on this set of articles: No overwhelming evidence one way or the other. There IS agreement that litigation does add some cost ranging from insignificant to about 10%; 8/21/09, 2:21 PM
Triangle Man said...: We can have tort reform and stop chasing our doctors out of our cities and out of the profession. We can lower costs by lowering malpractice insurance. We can lower costs by reducing, at least slightly, excessive defensive testing.

So why not at least start there?

Tort reform may be a fine idea, and I support lower malpractice insurance costs for docs, but it seems unlikely that it will substantially reduce health care costs based on the CBO document I linked earlier.; 8/21/09, 2:24 PM
Bruce Hayden said...: Do you not see how this weeds out nonmeritorious suits? Or do you -- rather oddly for a lawyer --value lawyers' time at zero?

How are you compensated? By the hour, flat rate, or only if the invention proves successful in the market?

As I pointed out in response to another poster, the problem isn't meritorious versus nonmeritorious. It isn't black and white. It is a continuum.

Lawyers mostly don't value their time at zero. Far from it. Rather, in contingency fee cases, they look at their chances of winning, and look at the likelihood of winning really big, and divide it out by the time they expect to spend to see if it makes sense to take the case. Of course, it is all guesswork, but they either figure it out, or quickly go broke.

But what that means is that when non-economic damages are not capped, a lot more borderline cases are worthwhile gambles.

Finally, as to my practice. Taking a piece of a patent to prepare and prosecute it is almost always a bad business idea for the patent attorney, plus it is fraught with ethical issues. We all do it once in our careers. Most of us learn from that.

I have done contingency fee IP litigation work, but don't any more. I am in a firm, and the bigger the firm, the harder it is to make contingency fee cases work within the firm structure - which is why most contingency fee firms are fairly small.

Not surprisingly, in the contingency fee world, there are a lot of small fish, barely skating by, and some big fish, but the really big fish are really, really, big, richer by far than the richest physicians around (who earned their money from their practices). In the tobacco litigations, attorneys walked away with billions - and then gave heavily to Obama.; 8/21/09, 2:27 PM
Roger J. said...: Another interesting point re litigation--the costs of out of court settlements may not be adequately considered in studies as they may slip in below the radar.; 8/21/09, 2:33 PM
Bruce Hayden said...: Der Hahn:

Las Vegas medical mafia

You will need to provide a better link to whatever you are trying to link to. You have linked back to this thread.

But if it is what I think it is, I will suggest that there is a lot more to the story than can be found in the Las Vegas Review Journal, or even Sun. And you aren't going to read the other side in the Vegas papers.; 8/21/09, 2:34 PM
Derek Kite said...: Slow Joe:

Why do you think that Palin didn't write this?

It is really really low hanging fruit. It takes a lawyer with years of education to convince themselves that there is no issue.

Derek; 8/21/09, 2:35 PM
Bruce Hayden said...: Another interesting point re litigation--the costs of out of court settlements may not be adequately considered in studies as they may slip in below the radar.

The problem in the medical malpractice world is that doctors mostly don't settle unless they know that they are going to lose badly.; 8/21/09, 2:36 PM
Balfegor said...: FLS asked about my practice. Frankly, it is really, really, hard to incite a jury to award huge non-economic damages to clients in the patent world, since most often, the parties are corporations. They are far harder to garner sympathy for. It does happen.

Well, yeah. Don't you get 3X damages for willful infringement? Not really the same thing, sure, but those are non-economic damages.; 8/21/09, 2:37 PM
Bruce Hayden said...: Why do you think that Palin didn't write this?

I think that the assumption is that Palin has stuff ghost written. I am not convinced. But if she does, so what? Politicians rarely write for themselves. And they also invariably have speech writers.

But if the assumption is that Mrs. Palin isn't smart enough to write these things, then we should also look to what our President is "writing" and saying. Remember all the Obama teleprompter jokes?

Or, maybe this is all projection on the part of the left, since they know that their politicians don't write their articles and speeches themselves, they assume that Palin is the same.

who really cares?

Oh, "apeshint" - drop the "n" and I have a keeper.; 8/21/09, 2:41 PM
Balfegor said...: This is actually going to be very fascinating to watch how it plays out. I think that Palin is still driving the debate, and doing so very well.

What is bizarre to me, is that this must be the first time someone is setting the terms of national debate from her Facebook page. What with the Obama campaign last year, the economic crisis, and this, it's like we're on crazy pills here.; 8/21/09, 2:41 PM
Bruce Hayden said...: Well, yeah. Don't you get 3X damages for willful infringement? Not really the same thing, sure, but those are non-economic damages.

Yes, but, usually not. At least in patent litigation. And it is getting harder to get willful infringement. Until recently, after someone got an infringement demand letter, willfulness was almost automatic if they didn't get a competent opinion to the contrary. Now, much less so. Which is a bummer, because the opinions are really good work.; 8/21/09, 2:45 PM
traditionalguy said...: Bruce Hayden... My impression is that Palin is smart enough to use these arguments with her unique attitude and timing. To avoid embarassment, I would also leave open the likelyhood of use by her of fact checkers and editors. Otherwise she maybe Julius Ceasar re-incarnated and writing "Veni vedi vice" in wolf's blood on caribou skins. My best take on Palin is that she will be our Winston Churchill figure in a time of attack by fascist forces, although she has no greater skills than Churchills'.; 8/21/09, 2:55 PM
Rich said...: Bruce Hayden said:

The problem with that theory is that it doesn't fit with basic economics.

Well, this particular bumblebee was able to fly. This is not theory but what actually happened in California following MICRA. Premiums stayed high, although med mal recoveries dropped significantly, until the passage of Prop 103, and then premiums moderated.; 8/21/09, 2:57 PM
Rich said...: Alex said...

Why not just outlaw the medical insurance industry since they're so EVIL? I mean I've had enough of this, I'm tired. FUck it. Let's institute Communism, let's hand over the country to the fuckers already. I can't fight anymore.

Why not just regulate them appropriately so they have to behave themselves? Whey not just hold them accountable like anyone else would be if and when they commit fraud? That’s all I’ve been after at any rate. They perform a necessary and critical function in society and we need them. But we need them to be honest and operate in good faith and all too often they don’t.; 8/21/09, 3:03 PM
Ignorance is Bliss said...: Rich-

I read that screed you linked to regarding MICRA and prop 103. The data they present really doesn't show what they claim to show. Nowhere do they show what happened to the average premium, only the total premiums paid. Thus, changes in the number of doctors is not accounted for. The data they do provide shows that the rate of total premium increase was way higher before MICRA passed then shortly after it passed, so MICRA may have done a lot of good. It shows how the percent of premiums spend on defending against litigation rose, but it does not show what happened to the number of lawsuits. And everywhere it refers to the plaintiffs as victims, without ever proving that they were.

If the facts were on their side, they could have done much better.; 8/21/09, 3:12 PM
richard said...: there are 173,000,000 reasons the dnc and the democratic party aren't pushing tort reform.; 8/21/09, 3:13 PM
hombre said...: Regardless of the Ivy League snobbery directed her way, Palin does have a degree in Communications/Journalism.

It would not be too surprising to learn that she can put it to use.; 8/21/09, 3:14 PM
Rich said...: Ignorance is Bliss said...

Rich-

I read that screed you linked to regarding MICRA and prop 103. The data they present really doesn't show what they claim to show. Nowhere do they show what happened to the average premium, only the total premiums paid. Thus, changes in the number of doctors is not accounted for. The data they do provide shows that the rate of total premium increase was way higher before MICRA passed then shortly after it passed, so MICRA may have done a lot of good. It shows how the percent of premiums spend on defending against litigation rose, but it does not show what happened to the number of lawsuits. And everywhere it refers to the plaintiffs as victims, without ever proving that they were.

I will certainly give you that the organization authoring the study has a distinct point of view. I wasn't able to devote the necessary time to find a more objective source, but I do know that their numbers check out (I will not haggle with you over what they mean because I am not sufficiently expert to do that). I can tell you that at the time all this was going on I was working at a law firm which did medical malpractice defense as a primary area of practice. And I know that I heard over and over from our clients -- the insured physicians -- that MICRA had not worked because they were still paying the same high premiums. That's just anecdotal, I know, but I did hear it over and over.; 8/21/09, 3:18 PM
Rich said...: And just so no one can accuse me of not being up front, here's the contrary view, from an equally partial source.; 8/21/09, 3:23 PM
Irene said...: Laika, thanks for the link to the Ontario "Wait Times" site. It's no wonder a relative in Toronto must wait eight months for hip surgery. I also checked one comparison. The provincial wait time for a type of cancer surgery is 84 days. Here in Madison, the wait is about four to seven days.; 8/21/09, 3:29 PM
Rich said...: Brain fart. The study I posted at 3:28 evaluated the effect of med mal caps on health insurance (conclusion: no effect), not med mal liability insurance. Maybe later when I get a chance I will keep looking for more data.; 8/21/09, 3:32 PM
Sprezzatura said...: "1. I think there should neither be too much nor too little litigation,"

Brilliant! Why didn't I think of that?

"and 2. Both my parents died as a result of medical malpractice and neither brought a lawsuit (and could not bring a lawsuit)."

It would be interesting to hear more from the folks who claim they personally know docs who waste money on tests to avoid lawsuits. I know a lot of folks in the medical industry, and I hear a lot about how medical screw ups cause death or serious harm w/o any lawsuits to follow. Most medical screw ups are not as easily recognized by patients as it would be if the wrong leg was amputated, so much goes unknown.

Anyone claiming to have close personal relationships w/ docs would also have heard these sorts of stories. But, all I'm reading in the comments is the boilerplate stuff about how lawsuits make docs waste money on tests that the docs know are unnecessary. Don't folks have insights into how health care really works from an insiders perspective?; 8/21/09, 3:44 PM
d-day said...: I love Sarah Palin, and I love the fact that she exerts huge influence when she makes a Facebook post (lol!), but I think she's wrong on this.

People wanting tort reform generally don't understand why medical liability insurance premiums have become so high.

SURPRISE! - It's due to federal law!

Runaway juries are runaway juries, there's always a freaky outlier in the news of the day. But have homeowners and auto insurance premiums doubled/tripled/quadrupled in recent years? No. Architect, accountant, attorney liability premiums aren't keeping pace with the medical insurance premiums either.

The reason why medical liability insurance premiums keep shooting up is because of a federal law that requires any doctor who is sued to report the settlement to the National Practitioners Data Bank, which information is then given to all future insurers. So instead of being able to settle a nuisance claim for nuisance value, a doctor HAS TO fight each and every case through a trial. The cost to take a medical malpractice case through trial in my (relatively low-cost state) runs around $85,000. In other states (NY, CA), I'd be surprised if it could be done for less than $150,000. So each and every time there is a lawsuit, EVEN IF YOU WIN, the insurer can count on a cost of $100K. That's a sunk cost, not recoverable against the losing party in nearly all states, and even if you could recover as a matter of law, the injured patient never has that kind of money.

So say you rearend someone. Everyone wants to make a buck, so they send you an ER bill for their neckbrace and want $1000 to make it go away. You tell them to stick it and give it to your insurer. Your insurer says, it will take $30,000 to try this thing, they pay the money (regardless of whether you think they should), and that's that.

Now for doctors, everyone who has a bad result wants to make a buck, and they send you the same bill for the neckbrace, $1000 to make it go away. Their doctor tells them to stuff it and sends it to his insurer. BUT because doctors have to report any settlements to the NPDB, almost all insist on "consent to settle" provisions in their liability policies (they generally pay extra for it, too). So instead of having the insurer pay $1000 to get rid of it, the doctor says "I paid for a defense, defend me, I can't let this go on my record because my already-huge premiums will double." So say it's a really frivolous claim. The insurer will pay an attorney $7-8K to get it dismissed at the outset of trial. Or $30K-45 to get it dismissed after some discovery if it's questionable. Or maybe it goes to trial, and there's $100K down the drain. The insurers know this is going to be the result, it has to be, even if $1000 can make it go away.

This happens all the time.

Federal law is the root of the malpractice problem and insurance crisis.

I see no need for tort reform that would limit the rights of injured patients to bring just claims when there is an easy fix of repealing a bad law that will have a larger effect on this.

(Also, FYI for the commenter above - joint and several liability has been abolished in many states via the adoption of the Uniform Contribution Among Tortfeasors Act.); 8/21/09, 3:53 PM
mrs whatsit said...: "A public option would establish a standard of care that all doctors and hospitals could point to when defending themselves against malpractice." Look, FLS, I am actually in favor of tort reform, but I have got to ask whether you got far enough in law school to learn anything about actual malpractice law. There already IS a single standard of care that all doctors point to in defending themselves. The problem is not establishing the standard of care. The problem comes in applying the standard to the individual details of particular cases, which never, ever lend themselves to one-size-fits-all determinations. The only way that establishing a government-mandated standard of care would help doctors would be if it REDUCED the standard of care -- and are you really, really sure that you want to argue that this is a good idea?

WV: idiumbsa -- too good to have to explain.; 8/21/09, 3:54 PM
KCFleming said...: This insider's perspective:

1. You cannot measure the costs of tests done solely for CYA purposes. No one ever checks "CYA" as the reason for the test ordered, so all estimates are inherently meaningless.

2. Mistakes happen every day, because everywhere medicine is practiced, it is done by humans, who remain error-prone. The malpractice system does not acknowledge that a zero error rate is unpossible.

3. What is malpractice anyway? Every bad outcome now has the potential to be called 'malpractice, even if that outcome was likely or even unavoidable. That's why doctors are getting out of delivering babies: all bad births are actionable.

4. Since errors are unavoidable, compensation is needed. Why not have a compensation arbitration system?

5. For doctors with repeatedly bad outcomes, a true functioning board of doctors, ethicists, and patients should decide on punishments: remedial training, loss of license, fines, etc.

6. Old people fall down, and it is for the most part unpreventable. Yet we are sued over these injuries. I have had patient's kids tell me: "If anything happens to my Mom in this nursing home, anything at all, I will sue you."
So I quit providing nursing home care.

Win-win, I say.
Now no old people fall because of me. Well, they still fall, but I cannot be blamed.
Fewer and fewer MDs are willing to do this kind of care, but at least they aren't in nursing homes, making people fall down.; 8/21/09, 3:56 PM
Laika said...: Hi Irene, wait times are a constant political football in Canada, but nothing gets done, besides launching endless "initiatives" and setting constant targets. (Example: The wait time goal for Ontario residents to receive MRIs: 28 days. Current wait list: 107 days)

Wait times is how government run health care "pulls the plug on Grandma". She just goes from treatable to "too far gone" in the half year she spends on the waiting list. The doctor is not culpable, he requested all the possible treatments. The bureaucrats are not responsible, they're just "doing the best they can with the limited resources available".

There are no difficult conversations about denying necessary treatments. People just die or pass the point where the treatments would be effective. What's to discuss at that point?; 8/21/09, 3:59 PM
Irene said...: Thanks, Laika. This is information we should digest. The current debate is at such a generalized, theoretical level. For many of us, it's the potential practical application that is of greatest concern.; 8/21/09, 4:07 PM
Laika said...: You still need resources to access expensive treatment in governmet run healthcare.

Instead of cash though, you need physical stamina, and to outlast the other sick people on the waiting list. If you can do that, you do get pretty good care. Just don't get too sick, with something that needs fast treatment.

A lot of the rhetoric you see about "death panels" and such is overblown- it's more subtle than that. The effects happen... no one is accountable. The rationing is part of the process.; 8/21/09, 4:14 PM
Anonymous said...: Carl Dean is, of course, a reputable law professor.

Too funny. As if having reputable law professors posting about in your blog comments is a sign of your clout.

What's really sad is the lack of reputable plumbers. Can't find one here, ever.; 8/21/09, 4:37 PM
KCFleming said...: I know a few good urologists.; 8/21/09, 4:53 PM
Chase said...: Seven,

I know not one, but 3 reputable plumbers. Do you live in So Cal?

Carl Dean, whatever his strengths and attributes, is obviously a drive-by commenter. Aims to do as much damage as possible in one shot and then flees the scene.; 8/21/09, 5:01 PM
Paddy O said...: No wonder that no reputable law professors

"You, with no law professors!"; 8/21/09, 5:04 PM
exhelodrvr1 said...: Let's not hesitate to take advantage of the crisis Obama is having in passing the health care bill. We can be God's partners in getting rid of lawyers!!; 8/21/09, 5:13 PM
Cedarford said...: Montagne Mointaigne said...
Medical malpractice lawsuits driving up costs is a canard. Even after Texas and Missouri passed tort reform, premiums continued to rise..

Mointaigne is mostly right. It IS a canard. The doctors themselves say that tort reform will achieve slight, but still significant savings of 4-5% of current healthcare in terms of GNP - in terms of lowered physician overhead and less specious defensive medicine and CYA testing the doc does.

But it is no silver bullet that will largely fix all what is wrong with the financially unsustainable and inequitous US model. The Right-Wing protestations that only tort reform will be needed for our "Best in the World!!" system nonwithstanding.

Think of it as a nice small thing that will lead to a little less money for lawyers collectively and savvy suers...and a little more money for actual beneficial healthcare resources and a little more for the average American.

Less John Edwardses out there, less sue-happy Ashkenazim is a good thing. Or Russian immigrants, gypsies in the US that can have 35-45 lawsuits against various entities going on at once. Or the shysters themselves who see most other people as wallets that can be opened and disbursed by a clever enough attorney backed by his cronies at Court.

--------------------------
Palin is wrong on most things, but she is right that any comprehensive healthcare reform must have tort reform added in. A system of official arbitration and award caps would do wonders.
---------------------------
Big Mike - "an ob/gyn doctor was told by the couple that they did not want amniocentesis because they had no intention of aborting the fetus under any circumstances. Just to be safe, the ob/gyn had them sign a release form.

Well the parents were Ashkenazim (descended from central and northern European Jewish ancestors) and the baby was born with Tay-Sachs. No matter what your position on abortion might be in the abstract, hardly anyone would back off from aborting a fetus with Tay-Sachs -- the baby will be normal for about 6 months, then die slowly and in extreme pain. Infants with Tay-Sachs are normally dead before their fourth birthday.

The distraught parents filed a wrongful death suit and despite the release they won a judgement for several million dollars. The doctor's insurance paid most of that, but the doctor's insurance went through the roof and she was forced to abandon obstetrics."

Why am I not surprised!
--------------------------
Chip Ahoy said...
I found Palin's article well-written, with complete sentences even, and words with all their letters arranged logically subject, verb, object. The whole thing could be interpreted into any other language with ease and with no loss of meaning. Plus it spared me the unease of listening to her vocalize.

It's amazing what a good ghostwriter or TelePrompter scriptwriter can do for a person lacking the brains, experience, and knowledge to lead and persuade on their own.

Look at Palin doing scripted speeches then trying to rely on just her own mind working well in public.

Look at Obama.; 8/21/09, 6:11 PM
Linus said...: The problem with medical malpractice cases is not actual damages, but punitive damages and damages for pain and suffering. That is where the lottery system comes in. And, limitations on punitive damages and the pain and suffering are a big part of tort reform.

Without meaningful limits on these types of damages, you have a John Edwards convincing juries to fry OB/Gyns for failing to do C sections, when there was an adverse result, even if it turns out that there was no statistical correlation between the supposed cause and the damage.

You're conflating liability and damages. They are separate. It wouldn't matter if the law awarded mandatory $1 million damages in med mal cases if you couldn't establish the doctor's liability for those damages. And if a doctor is clearly liable/responsible, but the damages are slight, where's the huge crisis?

The example given upstream about being on a jury and convincing other jurors suffered from the same confusion. It started by mentioning the amount the claimant was asking for, implying that it was a bogus amount. But it turned out, the case turned on whether the doctor was responsible for any of the damages.

What do tort reform advocates believe is a proper outcome for clear cases where the doctor screwed up? Let's use the classic example of cutting off the wrong leg. That person should not be allowed to recover against the doctor? Or, he should, but only $250,000 or whatever the damage cap is? I realize that most tort reform advocates use the phrase "pain and suffering" only in derision, as though these are imaginary things, but seriously, a person is not entitled to be compensated for the loss of a leg?

As for those who believe these cases are just "transfers of wealth", well, no kidding. I can guarantee you that the hypothetical claimant above would much prefer that the court order the doctor to give him his leg back. But courts don't have that power. So, we use money. Yeah, it's a poor substitute, a very poor substitute. In fact, it's the worst substitute, except for any other substitute that is currently available in this reality.

Last, I know it's superficially appealing to decry contingency fees (how dare lawyers make more money than me!), but let's look at unintended consequences. Making injured parties pay hourly for representation would put medical malpractice litigation out of reach for most people, even meritorious cases. Perhaps even more so for meritorious cases, as people who are the victims of serious malpractice are more likely than the average person to not be working and earning a wage. Yet, on the other side, in every case (by definition) you've got either a doctor (generally better off financially) or an insurance company paying for the hourly defense costs.

I'm skeptical that doing that would lower malpractice premiums or make medical care cheaper. But even if it did, an honest approach would try to decide whether it was worth it, compared to the bad things caused at the same time.

Besides, in many states (including mine) it's already pretty difficult to prove that a doctor was negligent. Statutorily, you have to have another doctor in the defendant doctor's area of expertise show up and testify that the defendant's conduct fell below the standard of care AND that his failure caused the damages alleged. That's getting more and more difficult, and more and more expensive, as the local doctors (as you might imagine) don't like to crap where they eat. To be honest, I'm amazed people win malpractice actions at all.; 8/21/09, 6:59 PM
Irene said...: It may be difficult to prove that a doctor was negligent. Most doctors, however, fear leaving the question to a jury, so they settle. Settlements cost big money, and the doctor's insurers make the payouts.; 8/21/09, 7:06 PM
dick said...: Nina,

I question how you can say that they were all damaged by malpractice. That seems to me to be the sticking point. You admit that there are frivolous suits. That would seem to put the lie to your other statement. I would like to see some statistics on how many are frivolous, how many are judged reasonably, how many are judged with insane amounts passed to people for things like not taking the doctor's advice or not following the instructions. I would also like to know how many were because of tricky lawyers like Edwards who play-acted his way to the outsize resulting amounts.

Personally I think that tort reform is needed but I feel that it needs to be discussed at length and a real solution arrived at. What we have now is ridiculous and we are paying for it all over the country with doctors leaving states with huge malpractice awards and insurance costs for other states.; 8/21/09, 7:18 PM
Anonymous said...: "Let's not hesitate to take advantage of the crisis Obama is having in passing the health care bill. We can be God's partners in getting rid of lawyers!!"

Never let a good crisis go to waste.

WV: mictim - obviously a medical malpractice victim (I hope never to be a mictim); 8/21/09, 7:33 PM
Bruce Hayden said...: It may be difficult to prove that a doctor was negligent. Most doctors, however, fear leaving the question to a jury, so they settle. Settlements cost big money, and the doctor's insurers make the payouts.

That has not been my understanding, from talking with numerous doctors over the years, and one of the posters above explains why it is not accurate.; 8/21/09, 7:36 PM
Ignorance is Bliss said...: Linus said...

The example given upstream about being on a jury and convincing other jurors suffered from the same confusion. It started by mentioning the amount the claimant was asking for, implying that it was a bogus amount. But it turned out, the case turned on whether the doctor was responsible for any of the damages.

Sorry if my writing wasn't clear. I was not trying to imply that $911,000 was unreasonable for a wrongful death. I only included it to give a perspective on the seriousness of the case.

The issue in the case was liability, but my concern was heighten based on how little thought was put into giving away large amounts of someone else's money.; 8/21/09, 7:41 PM
Bruce Hayden said...: What do tort reform advocates believe is a proper outcome for clear cases where the doctor screwed up? Let's use the classic example of cutting off the wrong leg. That person should not be allowed to recover against the doctor? Or, he should, but only $250,000 or whatever the damage cap is? I realize that most tort reform advocates use the phrase "pain and suffering" only in derision, as though these are imaginary things, but seriously, a person is not entitled to be compensated for the loss of a leg?

The distinction is between economic and non-economic damages. Pain and suffering are non-economic damages. So are punitive damages. Getting the guy a motorized wheelchair, or maybe even getting him transportation for the rest of his life, are economic damages, and are typically not capped.

Why cap non-economic damages?

First, there is the lottery aspect. Non-economic damages invariably appeal to the passion of the jury. Was the guy who lost his leg an aspiring football player? Show the jury all his football pictures, back to when he was in kindergarten. Have his wife repeatedly break down in the courtroom. Heck, have him break down. The more the merrier. And, maybe, 1 time in 5 or 10 or 20, the plaintiff (and his attorney) will hit the jackpot, raking in tens of millions of dollars. Of course, that blows through the malpractice cap, and ultimately bankrupts the doctor. But, so what? Justice is served.

That brings me to the second part of this that is fairly unique to medical malpractice. Medicine is not accounting. Two experienced doctors looking at a complex case are likely to see different things. And they may be rushed, because Medicare is underpaying them, and they need to make it up in volume. Doctors make mistakes, just like the rest of us. The difference is that people's health suffers when they do. The patient may die, or, worse, be disabled for the rest of his life.

What makes it different though from other torts, at least to some extent, is that enough big malpractice verdicts may drive doctors out of a specialty, and maybe even geographical area. They may quit, or just move their practices, if they just aren't making enough to cover their overhead (including malpractice insurance) and have enough left over to, for example, send their kids to college. Why bother? So, they move or quit.

So, what a number of states have done is to trade off capping non-economic damages for keeping the doctors around and in their specialties. Regardless of whether or not caps keep down health care costs and/or malpractice insurance, there is a lot of evidence out that doctors often flee states with runaway malpractice verdicts, and then return when meaningful tort reform is enacted. And, I think that a lot of people are willing to make that trade - giving up the possibility of large non-economic damages if they are hurt by medical malpractice in trade for increased health care provider availability (and possibly lower health care costs).; 8/21/09, 7:55 PM
Anonymous said...: The Right-Wing protestations that only tort reform will be needed for our "Best in the World!!" system nonwithstanding.

No one in this forum is making that argument. Don't know of anyone in the "Right-Wing protestations" movement making that argument either.

It is but one piece of the puzzle.; 8/21/09, 8:06 PM
nina said...: dick,

I just don't know (how many are frivolous). I am tracking right now a frivolous trusts and estates suit and I am amazed at the potential for abuse. But I do know that there are many malpractice (egregious at that) episodes that never make it to court. That shouldn't be surprising. Many people (Ann maybe, if I understand her parental case) jsut do not like to go to court.

Again, if you cover health care (universally), you lose much of the basis for malpractice claims.

People think that pain and suffering claims are the ones that rake in the money. That's not true. Pain and suffering gets publicity, but it's really rare. Most courts do not like them for obvious reasons.

BTW, I have to say that I am not an expert in medical malpractice, but I do teach torts and I devote one small class to the medical cases.; 8/21/09, 8:36 PM
Ann Althouse said...: Nina, the problem was not an aversion to lawsuits, but the difficulty of suing under the circumstances and in the particular state where it happened. It isn't easy to get the expert opinion you need and lawyers don't like cases where they can't get huge damages and so on. Many factors.

Anyway, I think some of the people here are missing the importance of the deterrent effect of damages. One person gets money, but others are helped if doctors feel pressure to behave better in other cases. Obviously, the deterrent effect can be overdone, that's why I said before that there should be the right amount of litigation.

Now, somebody said, yeah, but how do you decide exactly how much litigation is the right amount? That's the standard problem in law: where do you draw the line? It's not easy, but the courts are challenged to get it in the right place.; 8/21/09, 8:44 PM
master cylinder said...: Why hasnt anyone brought up the percentage med mal suits comprise in terms of total healthcare costs?
[less than 2%]

Another rage-fest against those crazy batshit liberals.
Another Althouse-encited tizz.

Gotta love it!
All enterprises need regulation;
legal, medical, and good 'ol corporate insurance companies.

what it is baaabay.; 8/21/09, 9:21 PM
Bruce Hayden said...: Anyway, I think some of the people here are missing the importance of the deterrent effect of damages. One person gets money, but others are helped if doctors feel pressure to behave better in other cases. Obviously, the deterrent effect can be overdone, that's why I said before that there should be the right amount of litigation.

I would esp. agree in the case of medical malpractice, since doctors in many jurisdictions seem reluctant to police themselves adequately.

Now, somebody said, yeah, but how do you decide exactly how much litigation is the right amount? That's the standard problem in law: where do you draw the line? It's not easy, but the courts are challenged to get it in the right place.

Let me suggest that we have seen a number of times over the last decade or two where legislatures or the people (through the referendum process) have stepped in when they thought the courts have failed here, and rebalanced where they want the line to be.

The problem is that courts are really not well situated to make this sort of balancing for society. They typically deal at the individual level, and that makes it hard for them to draw lines that take into account all of the relevant factors. In particular, I think that they often cannot take into account some of the societal costs of excessive damages, such as, for example, doctors moving out of state or quitting.; 8/21/09, 9:38 PM
Bruce Hayden said...: Why hasnt anyone brought up the percentage med mal suits comprise in terms of total healthcare costs?

Because your 2% is only the direct costs, and does not take into account the excess testing that results from runaway malpractice jury awards, and the doctors who move away or quit as a result.

Oh, and several posters above have mentioned it - which you would probably have noticed if you had read the comment thread before you came in here and dumped your approved talking point.; 8/21/09, 9:41 PM
Big Mike said...: @Professor, your comment reads like something right out of the textbook. What about the case I described in my 11:42 post?

@Cedarford, my point in raising the ethnicity of the parents is that Ashkenazim (and Cajuns) are at risk for Tay-Sachs and are the only ethnic groups for which this is true. I suspect that lawyers and law professors would argue that the doctor should have performed amniocentesis anyway due to the risk factor. But what if the baby was damaged during the amniocentesis procedure (it happens) and would otherwise have been healthy?

From where I sit that case, coupled with the indefensible John Edwards, demonstrates conclusively that the American legal system needs to be radically overhauled from top to bottom.; 8/21/09, 9:43 PM
dick said...: professor,

I agree that doctors will behave better but if the damages are too outrageous they will behave better elsewhere where they can get some reasonable insurance rates and where they can get some cover from outrageous amounts if an ambulance chaser wins a case, frivolous or not. There has to be a balance there both ways. I don't see that balance in any of the healthcare reforms discussed so far.; 8/21/09, 9:50 PM
Big Mike said...: I am tracking right now a frivolous trusts and estates suit and I am amazed at the potential for abuse.

You need to reread your Dickens. Try Bleak House and also note Mr. Bumble's famous comment in Oliver Twist.; 8/21/09, 9:53 PM
master cylinder said...: Bruce , thanks for policing the blog, you're a charmer!
Keeping everyone on point [talking that is] indeed!
Youre not the boss of me!; 8/21/09, 10:03 PM
traditionalguy said...: Basic legal primer: A doctor cannot be held liable unless an expert witness (a Doctor in that field or a Professor recognized in that field) will testimony that the diagnosis and treatments given in the case were not within the then accepted standard of care of the medical profession in that area, NO MATTER how much damage was the actual outcome for that patient. So you can see how necessary multiple tests become to defense of cases. It becomes a case of the medical testimony, and that weeds out most bad claims. The problem comes not from the crazy bad claims but the crazy amounts of the jackpots awarded by jurors who all now somehow believe that everyone is surely entitled to strike it rich once during their lives. Then you now have a new factor in a new phenomena of Fake Scientific writers producing fake scientific literature in cooperation with the Trial Lawyers to fool everyone until real science catches up to their carefully produced con jobs (Also see, Global warming Faked Science).; 8/21/09, 10:09 PM
Ignorance is Bliss said...: master cylinder said

Why hasnt anyone brought up the percentage med mal suits comprise in terms of total healthcare costs?
[less than 2%]

I haven't brought it up because I didn't know the number. Does that 2% include out of court settlements? Defense lawyer fees? Overhead of the malpractice insurance company? Defensive medicine costs?

Do you have a link to a reliable source for that number? I'm not trying to be snarky. I truely want to educate myself about the facts.; 8/21/09, 10:20 PM
Derek Kite said...: Master Cylinder:

2% of $2.2 trillion.

Golly gee. Pocket change.

Derek; 8/21/09, 11:35 PM
Joe said...: The 2% likely doesn't account for all the lost time doctors and their staff must devote to a lawsuit and doing paperwork related to potential litigation. This is unproductive time.; 8/21/09, 11:45 PM
Synova said...: And, of course, doctors who leave the state or quit practicing and the difficulties that some people have finding (for example) OB doctors, as well as increased wait times to see a doctor or get treatment.

I don't know how those things can have a money value at all.; 8/22/09, 1:08 AM
Paco Wové said...: "Carl Dean is, of course, a reputable law professor."

"Carl Dean" is merely the latest incarnation of Althouse's longest-term stalker/troll, 'AJD', who I think also posts as 'Juris Dentist' sometimes. Every few posts, he tries to spit on Althouse from his little puddle of urine in the gutter.; 8/22/09, 10:31 AM
Mark Clifford said...: It was interesting reading all these comments. It seems that the only real data indicates that the American med mal system increases cost about 2%. Eliminating that cost would put the USA at something like 96% of the cost of French care instead of 100%. The interesting thing to me is that this could be done at ZERO cost to public health or choice of care. We know to a virtual certainty (from everyplace else in the world) that whatever its virtues, our tort system does not, overall, produce better health. Is there another reform that could be made that would have a greater cost impact without reducing either health or choice?; 8/22/09, 10:36 AM
former law student said...: Why cap non-economic damages?

why indeed? Housewives' lives aren't worth that much. Grandma's life -- a useless eater according to tort reformers -- isn't worth much at all.

Only people whose lives can be valued by the money they earn deserve malpractice awards.

Similarly, tort reformers believe in rationing care. "Defensive medicine" eliminates snap judgments about ailing patients by running tests that could reveal serious but less obvious diseases producing the observed symptoms.; 8/22/09, 3:17 PM
Ignorance is Bliss said...: mcallen3 said...

It seems that the only real data indicates that the American med mal system increases cost about 2%.

Do you have any source for that 'real data'? Do you know what it includes?

Without a source, or any knowledge of what is included, the 2% number is meaningless.; 8/22/09, 5:51 PM
Mark Clifford said...: Dear IiB:

The 2% figure is well known. You can find a pretty neutral discussion of it in this CBO report: http://www.cbo.gov/doc.cfm?index=4968&type=0. And I think you miss the point. Med mal does nothing to make us healthier or wealthier overall. The rest of the world knows this already.

-m; 8/23/09, 3:33 PM