DOCTORS SAY POSSIBLE WALKOUT IS NOT ABOUT GREED, BUT OUT-OF-CONTROL INSURANCE COSTS

AP Breaking News ^ | 01 January 2003 | Vicki Smith

[templar]

Wow. That has got to be the cutest little rhetorical sleight of hand I've seen in a long time.

And that has got to be one of the stupidist statements I've seen in a long time. Go back, re read my post, and then try engaging your mind before engaging the keyboard. If you have one, that is.

[templar]

I bet the % would be embarassingly high for the so-called tort reform group.

Yeah, like about 100% maybe? Tort reform, for conservatives, is only supposed to apply to the other guy, like liberals with gun control.

[templar]

Has anybody ever heard of a lawyer being sued for malpractice?

Happens fairly often and most legal firms have lots of malpractice insurance.

[Lady In Blue]

WVA is Robert Byrd's state and his son-in-law is a doctor.I wonder what position he'll take on tort reform?

[okie01]

"Basic economics, gov't $ skews supply/demand driving prices up."

Prices will rise, in order to absorb every cent of the available pool of money in the market. When government enlarges the pool, they distort the market -- and everybody ends up paying more.

And you are so, so correct about what those government $s have done to our health care system and college tuition -- the very two items incorporated in my standard lecture on the subject.

[McGavin999]

What we need is tort reform along with doctor reform. If a doctor is guilty of real malpractice there should be severe penalties for the doctor. Instead, he's allowed to continue to practice. That allows for a small percentage of doctors to raise the costs for insurance for all the other doctors.

Loser pays would be a great part of tort reform. It would stop over half of the nonesense claims. If the jury understood that a guilty verdict against a doctor would result in him losing his license, they wouldn't be so free with the rewards. Now they figure it's some insurance company that will pay. It's a vicious circle and the only ones making out are the lawyers and the insurance companies. Ever wonder why they don't fight the claims.....they get a percentage of the premiums as profit.

[mn12]

I read some liberal commentary on this issue, and they basically say "Those money hungry greedy bastards have a duty to the public to keep working!"

Hardly a day goes by where I don't see something that sounds like it was lifted directly from Atlas Shrugged.

[baseballmom]

It's not always a matter of can the doctor afford the insurance. Some doctors are no longer able to even get insurance. The companies are simply not offering insurance to certain specialties in some states.

In Pennsylvania the situation has now reached a crisis. Orthopedics, Neurosurgery, OB-GYN are severely affected. Some doctors are just packing it in - leaving their practices and going elsewhere. A real financial hardship, as so many practices are still heavily mortgaged. It's tough to just walk away - but how many can afford to pay $200,000 in malpractice. Recently, many of the Pennsylvania doctors recieved a nice "Dear Doc" letter, warning them about "abandoning" their patients and the consequenses thereof.

The day is coming when people are going to be unable to get top notch medical care in cities like Philadelphia and it's suburbs - because the young doctors are not coming here and/or staying here.

[Viva Le Dissention]

Tort reform and "loser pays" are two of the worst ideas that have ever entered the minds of the public. Fortunately, the people that understand the ramifications of these concepts have somewhat successfully been able to fend off the stupidity of the public, but it's slipping, and I fear that tort reform for medical malpractice will be the next disaster to cross this line.

Both these concepts shift the risk of loss to the individual/victim. Our economic system is concerned about efficiency, and the least cost risk bearer is obviously the large hospitals/insurance companies/etc that are able to diffuse the costs of injury over a large group of people. This is the entire concept of insurance--a big company is a more efficient bearer of risk than an individual.

The dynamics of why the risk is shifted to the injured party is obvious in both cases. In a "loser pays" system, an injured party would be basically bullied into either settling or dropping his complaint against a larger company. Let's say there is a new drug on the market, and I take this drug and get liver cancer. Moreover, 60% of the people who take this drug have gotten liver cancer, and the rate of liver cancer in the general population is, say, 5%. Now, it's common sense that the drug has caused my liver cancer, but common sense isn't always legal causation. While it's likely causation would be found, it's still basically a crap shoot. Now, this drug company would employ dozens of lawyers at $450 an hour to defend this case, because it has a possibility of major liability. These people are working around the clock, and I'm faced with the prospects of continuing my case against the drug company for my legitimate claim, or risk losing and being stuck with hundreds of thousands of dollars in legal bills from the drug company, not to mention my own legal bills, assuming my lawyer wasn't working on contingency (which he probably was). Then say the drug company comes to me and offers me $25,000 to go away. Who in their right mind wouldn't take this offer? The risk is simply too great. So by instituting a "loser pays" system, you are essentially shifting the burden of proof in civil suits from proponderance of the evidence to beyond any doubt, since no close case would ever go to trial--the risk would simply be too great. As a result, the law would never evolve or change; there is no incentive for people to push the legal envelope. Heck, not more than 75 years ago, privity was required to collect damages. If I bought a Buick, and the car was defective and it blew up, I couldn't collect from Buick because there was no privity--I bought the car from a dealership, not Buick itself. This is obviously an antiquated system, but it probably would have been MUCH slower to change, if at all, in a loser pays system because of the negative incentive to proceed to trial.

Medical malpractice tort reform is even a worse idea, but somehow it gets legs, don't ask me why. So let's say we get tort reform and damages are capped at $5m. Meanwhile, let's say I'm a 25 year old engineer that makes $50,000 a year. I'm in an automobile accident, and I'm sent to the hospital at which I am rushed into surgery. While in surgery, the doctor negligently administers the gas and I am permanently brain damaged. A very basic estimate of my lifetime earnings that I have lost as a result of the negligence of the doctor is $2m. I have to be placed on life support and have round the clock medical care; the estimated cost of medical expenses for the rest of my life is $10m. Pain and suffering is estimated at 1.5m. Throw in a few more odds and ends, and the total damages add up to $15m, say. But, thank God for tort reform, state law limits damages to $5m. So then the injured party is going to bear the responsibility of paying the additional $10m in damages? Why should the doctor not pay it? He was negligent, he caused the injury.

Of course, you could limit medical claims to actual damages and eliminate punitive damages entirely, but that is an equally short sighted idea, because then what do we do about the drunken doctors performing surgery, etc. Some things are just so shocking we've got to smack them with a little extra.

Look: all tort reform does is punish injured parties. People love to go to cocktail parties and talk about tort lawyers like they are lepers, but they never really think through the actual consequences of tort reform. In the end, the insurance companies are the least cost risk bearer, and in a marketplace, the LCRB should bear the burden of risk in order to operate at maximum efficiency.

[friendly]

I agree completely. After much careful consideration, I offer the following to keep the medical system (and a lot of other things in this country) operating and available:

1) Loser Pays (your clear point).

2) Massive tort reform on a unprecedented level

3) Widespread empowerment of paralegals for independent practice

4) An end to punitive damages.

5) An end to bogus class action suits.

6) Outlawing contingency fees. The dirty little secret of the lawyer industry is that contingency fees are considered grossly unethical and are illegal in almost every democracy on earth. As they were in this country until fairly recently when "activist" judges and corrupt bar associations allowed this outrageous and evil exploitation by their fellow lawyers.

7) Lawyers forbidden from running from office. They are agents of the judiciary.

8) Most important: a total disempowerment of the bar associations. Lawyer discipline by true consumer control. Like any other industry.

[okie01]

"Of course, you could limit medical claims to actual damages and eliminate punitive damages entirely, but that is an equally short sighted idea, because then what do we do about the drunken doctors performing surgery, etc. Some things are just so shocking we've got to smack them with a little extra."

Why do you say it is short-sighted? It is fair compensation for loss.

And as for "the drunken doctors performing surgery", should they not be stripped of their license and never allowed to perform again? That is called punishing the guilty. Why force your LCRB to increase its premiums and, thus, punish everybody?

Besides which, most tort reforms I have heard discussed aim at capping "punitive damages", not actual loss.

[Viva Le Dissention]

An end to punitive damages.

Ah, so a company that knows a product is defective but chooses not to recall it because it is more cost effective to settle any personal injury claims out of court than to complete the necessary repairs should NOT be subject to punitive damages? Where is the motivation for a company to act ethically? A company is totally insulated from making immoral decisions because, no matter what, it knows it is only faced with the prospect of paying the actual damages.

This isn't all that far fetched, and since it's Ford, it'll ring true. Let's say that Ford knew all the Bridgestone tires were defective and would cause SUVs to roll over, but it calculated that a recall of all Ford Explorers would be MUCH more expensive than settling the 200 or so wrongful death lawsuits that were brought against Ford as a result of SUV rollovers. So you don't think there should be an option for a jury to hit Ford with punitive damages? It should ONLY be required to pay the actual damages of the 200 or so wrongful death suits? Where is Ford's motivation to create a safer product? Where is the motivation by Ford to fix the product it knows to be defective? Oh, there isn't any.

Outlawing contingency fees

Nothing like squashing the voice of the poor. Let's say you are a $19,000/yr janitor at a private school, and while you are at your job, you are exposed to asbestos over a period of 15 years and you get cancer. Now, you haven't been able to save up much money over your life, only making $19,000 and having kids to feed and whatnot, and now what savings you had is being drained by medical expenses related to the cancer. Medicaid and your insurance from your job at the school (if you are lucky enough to have it) just doesn't cover everything. Now, the school is obviously negligent in keeping the asbestos around, but asbestos litigation is tricky and highly specialized, not to mention time consuming. And you just don't have the $15,000 or $20,000 it will take to litigate this kind of case. You're screwed.

Gee, if only there was a system which allowed the attorney to bear the risk of the cost of the case while collecting a slightly increased premium for his services. Oh my God, there is such a system! Contingency! The poor janitor gets to go to trial, gets his day in court, while the attorney bears the risk of the case. Everyone goes home happy and it's just plain better.

Lawyers forbidden from running from office

Well, let's not let freedom get in the way of this utopia you've created.

[Jesse]

You must be a lawyer.

Several problems with you analysis, not the least of which is that most claims against physicians are settled in favor of the physician. But the physician loses anyway, because he or she bears the risk of paying for the defense anyway. In your analysis, you mention that it would not be fair for an injured party to have to assume this risk...hey, why is it that the attornies don't mind assuming the risk of a contingency case, then? If you want to file suit, and lose, the attorney could pay the legal costs if you are so worried about your clients.

The fact is that big companies cannot diffuse risk efficiently if the costs exceed the premiums charged. The reason premiums are going up is because the risk can no longer be rationally calculated.

A lot of the actions brought against physicians are bogus...how come the trial attorneys never have a thing to say about that? I have had two bogus claims against me this year...one for a complication inherent in the procedure, and one from a women whose husband died of a bad disease, and I happened to read the chest xray. Said it was probably pneumonia, but recommended a follow up examination...less than 10 days passed with the patient getting antibiotics, the problem did not clear, I recommended a CT scan and a biopsy, and the patient had cancer and died. Did nothing wrong in either case, but ended up costing my insurance company thousands to defend, plus my lost income in showing up for depositions,etc.

[McGavin999]

Tort reform WOULD be actual costs and elimination of punitive damages. What would have to be a part of tort reform would be that a doctor who is guilty of negligence has his license pulled. If you eliminate those who are drunk or drugged or incompetent, there will be fewer reasons to sue.

A doctor making a simple mistake is another matter altogether. It would be up to the medical profession to determine whether or not a doctor was incompetent or merely made a mistake.

If your costs are covered, with a reasonable amount for "pain and suffering". Doctors are human beings and people have to stop demanding that a doctor make them well or they'll sue.

[Viva Le Dissention]

I think it's safe to say that anyone who performs surgery drunk would already be stripped of his license. I would certainly hope, at least, the medical board in my state would not allow a man to continue practicing medicine with this on his resume.

But punitive damages for this bring up the incentive for the hospital, since most hospitals are going to be included in a malpractice suit in a case of vicarious liability. If the hospital is only required to pay actual damages, it really doesn't have any added incentive to discourage its doctors from acting grossly negligent. The loss of a doctor is somewhat of an incentive, I suppose, but it's a hell of a lot less of an incentive than the prospect of being slapped with a $10m punitive award. The ability for juries to punish makes hospitals be safer. They have to police themselves more strongly. They must become safer and more efficient. This benefits everyone, and I see no reason why a reasonable jury should be stripped of its power to punish.

Besides all of this, most outlandish jury verdicts are reversed on appeal anyway, which basically defeates the purpose of tort reform; judicial review quashes the awards which are disproportionate, and keeps the awards that are appropriate. Taking each case on its merits is a much better way to proceed, don't you think?

[McGavin999]

BTW, without tort reform AND doctor reform, we'll end up with NO medical care at all. People have sued obstatricians if their babies die for any reason to the point where women are soon going to have to go to midwives to deliver their babies because there will be NO baby doctors out there. Soon that's going to spread to other doctors and hospitals will only be for the very rich.

We can either bring some sense into this issue, or we can start looking for witchdoctors to cure our ills.

[Jesse]

Just a few thoughts. Simple mistakes that result in adverse patient outcomes are not really simple mistakes.

One is not guilty of malpractice...it is a civil matter, and one is judged negligent. On occassion, physicians who have committed egregious wrongs have been criminally prosecuted, but it is rare because of the fear that to do this much, and nobody would practice medicine.

I do not argue that there should be no malpractice or suits. But despite what Viva la lottery says, the system is unbalanced. The trial lawyers gloss over the very real problems in the system, and never offer any meaningful solutions, so I no longer pay any attention to them.

Malpractice insurance is a pass through cost. If the reimbursment system weren't so screwed up, it would be a lot easier to calculate and pass this cost through. But consider, in some states it is estimated that malpractice insurance costs for some procedures may be from 300-1000 dollars...certain orthopedic and neurosurgical cases, or high risk ob. But the reimbursement for these cases by Medicare, Medicaid or no pay patients is often less than the malpractice costs or nothing at all.

[friendly]

True lawyer double talk with a mega-helping of Barbra Streisand!

[Viva Le Dissention]

First of all, I'm not a lawyer.

Secondly, big companies are always LCRBers, no matter what the cost of premiums. Again, this is why insurance exists. This is why most states require you to own automobile insurance.

And I obviously have no medical knowledge, and I know nothing of your situation, but, unless you're a total idiot, I'm pretty sure that you're not going to admit that you were negligent. Let's be honest, you have a bit of a bias in those examples; everyone thinks they are right.

You mentioned that most malpractice claims are settled in favor of the doctor, and I don't doubt that; the system is stacked in favor of the defendant. It's supposed to be that way. Negligence cases have 4 elements: duty, breach, causation, and damages. Each element has to be proven beyond a preponderance of the evidence; failure to do so on any one of those elements results in a not guilty verdict. To say that doctors win most of the time is expected, but this doesn't mean those doctors aren't without fault. Lots of times, especially in medical malpractice cases, preexisting conditions make causation and damages very difficult to prove/show, and the doctor falls ass backwards into an NG. In fact, the only thing that would disturb me is that if doctors LOST most of the time.

[Viva Le Dissention]

Viva la lottery

That's funny.