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Malpractice reform

Most talk of medical malpractice reform explains it as a concession Democrats might make to Republicans. But as Jonathan Cohn explains, a real compromise on this would be good policy, too:

While malpractice may not be a major factor in rising health care costs, the system is clearly broken. It forces doctors to operate under a cloud of suspicion, without necessarily punishing those physicians who are truly negligent. It encourages the use of tests and treatments that are frivolous, if not downright harmful. And it leaves the vast majority of people who need compensation for medical errors with no easy way to get it.

The key is finding ways to fix the malpractice system so that it helps both physicians and the patients, rather than one at the expense of the other. And there are several promising possibilities for achieving that. One is to have doctors report medical errors to hospital administrators, who would then notify patients and begin negotiations. A version of this "sorry works" model is in place at the University of Michigan Health System, where it has reduced lawsuits, cut litigation costs and sped the resolution of cases.

Another idea is to create a no-fault system, similar to the way workers' compensation works, or to channel most malpractice cases through special "health courts" that would come before jury trials. (The Scandinavian countries and New Zealand have such systems in place.) One other proposal--perhaps the most intriguing--is to tie malpractice to quality incentives, by offering some sort of legal protection to physicians who demonstrate they have abided by accepted clinical guidelines. Not only might such a scheme cut down on frivolous lawsuits. It might also improve the quality of care--which would, in theory, reduce the incidence of actual malpractice.

Almost no one knows this, but back in 2006, Barack Obama and Hillary Clinton co-wrote an article in the New England Journal of Medicine offering some smart ideas on this front.

By Ezra Klein  |  February 23, 2010; 5:50 PM ET
 
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Comments

The profits of insurance companies is at least AS significant as the cost that Trial Lawyers suck out of Healthcare, and Lawyers benefit by making healthcare dysfunctional, whereas insurance companies benefit more the less it costs.

Moreover, these days lawyers can win million dollar awards even if a doctor tells a patient if he doesn't diet he will have a heart attack---and then the patient does exactly that!!

I cannot understand how the left continues to DIE on the words "FOR PROFIT" Healthcare, and yet think nothing about how some scummy Trial Lawyer like John Edwards (A Democrat VP Candidate 4 years ago) got the millions that allowed him to buy mansions and mistresses!!!

These guys are pure evil!!!

Posted by: FastEddieO007 | February 23, 2010 6:14 PM | Report abuse

We have malpractice reform here in Texas, it didn't help in the least.

That said, I do beleive there should be malpractice reform. Not because lawsuits in and of themselves are a material cost driver, but because my guess is that doctors trying to CYA is a big part of the problem. (I don't have any links analyzing how much of a factor "defensive medicine" is. Do you Ezra?)

I really like the idea of tying malpractice to quality incentives, by offering some sort of legal protection to physicians who demonstrate they have abided by accepted clinical guidelines. But to me that goes way beyond malpractice reform.

Posted by: nisleib | February 23, 2010 6:22 PM | Report abuse

"One other proposal--perhaps the most intriguing--is to tie malpractice to quality incentives, by offering some sort of legal protection to physicians who demonstrate they have abided by accepted clinical guidelines."

Am I the only one troubled that doctors who abide by accepted clinical guidelines, practicing in good faith, are not already protected from lawsuits? Is this really such a novel idea?

"Not only might such a scheme cut down on frivolous lawsuits."

Oops, he let the cat out of the bag. I thought there were no frivolous lawsuits.

Posted by: cpurick | February 23, 2010 6:25 PM | Report abuse

"Am I the only one troubled that doctors who abide by accepted clinical guidelines, practicing in good faith, are not already protected from lawsuits? Is this really such a novel idea?"

Freedom-loving conservatives such as myself think that it is a crime against the constitution of the United States for big government to rob the liberty of a jury to award the amount that they deem fit after a fair civil trial results in a finding of malpractice.

Such arbitrary caps imposed uon the people's courts by a legislative body offend the separation of powers and subvert freedom.

This is tantamount to slavery!

Posted by: Patrick_M | February 23, 2010 6:38 PM | Report abuse

"Not only might such a scheme cut down on frivolous lawsuits. It might also improve the quality of care--which would, in theory, reduce the incidence of actual malpractice."

It would certainly homogenize care.

I'm surprised you libs hadn't figured out a long time ago that you can control the manner of delivery of health care by setting standards and tying adherance to those standards to protection from malpractice. Of course, that would be in direct contrast to your assertion that tort reform does nothing to reduce costs or increase defensive medicine, but consistency is the hobgoblin of small minds, right?


Posted by: bgmma50 | February 23, 2010 6:45 PM | Report abuse

"We have malpractice reform here in Texas, it didn't help in the least."

Well, I'm from Texas, and you don't hear me complaining either about my insurance costs or my access to healthcare, the former of which is reasonable and the latter of which is plentiful.

Posted by: bgmma50 | February 23, 2010 6:47 PM | Report abuse

"Freedom-loving conservatives such as myself think that it is a crime against the constitution of the United States for big government to rob the liberty of a jury to award the amount that they deem fit after a fair civil trial results in a finding of malpractice."

Use your brain Patrick. If a doctor follows procedures by the book, then how, exactly, can he be guilty of malpractice?

Doesn't the definition of "malpractice" sort of require the the doctor have done something "wrong"?

Please explain why you think a doctor who strictly follows protocol should ever pay for damages. I'd love to hear it.

Posted by: cpurick | February 23, 2010 7:04 PM | Report abuse

"Please explain why you think a doctor who strictly follows protocol should ever pay for damages. I'd love to hear it."

I don't think that.

The burden of proof is on the patient, and if the jury finds by a preponderance of the evidence that the doctor "strictly follows protocol" (i.e. was not guilty of negligence), then the good doctor will not pay a cent.

"Tort Reform" interferes with the liberty of the plantiff to sue, and with the liberty of the jury to award the amount that the jury considers to be the appropriate amount of damages, once there is a finding that Dr. Quack did NOT "strictly follow protocol."

Posted by: Patrick_M | February 23, 2010 7:15 PM | Report abuse

"Freedom-loving conservatives such as myself think that it is a crime against the constitution of the United States for big government to rob the liberty of a jury to award the amount that they deem fit after a fair civil trial results in a finding of malpractice."

I'm pretty sure that's tongue in cheek, but just to be sure, you do know that the constitutional guarantee of right to trial by jury does not guarantee anything to people who might be victims of malpractice unless the malpractice arises to the level of criminal behavior? And even then, it does not guarantee the right to seek multmillion dollar damages, but only the right to seek a verdict of guilty.

Posted by: bgmma50 | February 23, 2010 7:26 PM | Report abuse

"And even then, it does not guarantee the right to seek multmillion dollar damages, but only the right to seek a verdict of guilty."


Yes I agree with you. The constitution imposes no cap on damages. But you damn libs want to take away liberty that the constitution allows !!

Tyranny !!

Slavery !!

Posted by: Patrick_M | February 23, 2010 7:30 PM | Report abuse

"Another idea is to create a no-fault system, similar to the way workers' compensation works, or to channel most malpractice cases through special "health courts" that would come before jury trials. (The Scandinavian countries and New Zealand have such systems in place.)"

Both of these have a lot of merit and make a lot of sense.

A couple of other thoughts:

1) Cohn ends with a justification on the need for pilots. Has there been an academic who ever didn't think more data was required?

2) Tort reform focused on costs saved, but there is little discussion of the benfit of torts. Torts a response that fundamentally misunderstand the systems approaches to error reduction, which is pertinent to medicine. I'm not aware of any data suggesting torts are effective, which I don't believe as well. So its unclear why the status quo should be kept in place while we experiment with new options. This isn't effective and there are negative costs to the overall system. What exactly are we protecting besides trial lawyers income and Democratic donations?

3) For all the (good) push on the left for looking at other systems for guidance, its been appallingly absent in this domain. Most countries in Europe don't rely on torts and have some combination of the above suggestions instead. I get troubled by the intellectual dishonesty of looking at other system for justifying single payer, but similarly arguing that torts are necessary when those same systems have them.

4) The key principle is that patient compensation and provider punishment really should be two separate processes. Its unclear to me why one patient should be compensated if they have an adverse event due to a physician mistake, but another patient has an adverse event due to a rare side effect. The system will inevitably have mistakes-- its run by human beings, after all-- so we all know when you walk in the door that there is some chance of that happening, just like side effects to a drug. I'm looking for a moral justification why society should help one individual and not the other.

5) Wasn't impressed with the Clinton/Obama piece, then or now. They avoided the issues of actually reforming torts, and instead focused on side issues like improving disclosure and communication. The issue is that the torts system is a poor approach-- compensation is distributed inadequately and there are no clear benefits in reducing errors. That's a pure failure.

Posted by: wisewon | February 23, 2010 7:39 PM | Report abuse

PS The Republican focus on limit damages is similarly silly. We need to fix the system, not just cap damages. Standardization of awards, similar to workers' comp, is a reasonable discussion, however.

Posted by: wisewon | February 23, 2010 7:40 PM | Report abuse

"The burden of proof is on the patient, and if the jury finds by a preponderance of the evidence that the doctor "strictly follows protocol" (i.e. was not guilty of negligence), then the good doctor will not pay a cent."

Then why didn't you just say I was right in the first place?

Posted by: cpurick | February 23, 2010 7:53 PM | Report abuse

Oh, and actually, Patrick, the doctor will still pay quite a few bucks to establish his innocence in the face of the charge.

I agree that plaintiffs can't be expected to pay that back, but plaintiffs' lawyers could certainly be expected to pay a portion commensurate with their contingency fee rates. There's no reason a losing law firm shouldn't pay, say, 40% of the doctor's legal fees.

Posted by: cpurick | February 23, 2010 7:56 PM | Report abuse

"Then why didn't you just say I was right in the first place?"

I am pleased that you agree that freedom-loving patriots must stand against this Castro-style takeover of the court system.

"Oh, and actually, Patrick, the doctor will still pay quite a few bucks to establish his innocence in the face of the charge.

I agree that plaintiffs can't be expected to pay that back, but plaintiffs' lawyers could certainly be expected to pay a portion commensurate with their contingency fee rates. There's no reason a losing law firm shouldn't pay, say, 40% of the doctor's legal fees."

As a staunch conservative, I find your attorney fee rule somewhat less offensive than an arbitrary limit on damages, but it is still tyranny! Here's why.

The civil courts are creatures of state law, and state and local jurisdictions set their own laws and court rules. To impose a federal standard would be a crime against states' rights.

Many local jurisdictions have their own tools to filter out frivoulous lawsuits, including mandatory early arbitration and mediation programs. Government works best when it is closest to the people, comrade liberal guy! I don't want some fed like you setting up the rules at my county courthouse.

Besides, you liberals are attempting to impose just one more needless federal regulation. These are TORT cases, so the plaintiffs' lawyers take them on contingency. That gives the plaintiff's law firm a built-in incentive NOT to waste months or even years if the case is a dog.

Furthermore, even when a claim is not successful, that does not mean it was brought in bad faith. Many cases with merit are simply too difficult to prove or are very close calls.

Comrade Socialist, if the Brown family had lost their wrongful death (a tort) action against OJ Simpson, should OJ's lawyers been allowed to collect from the vicitim's family's law firm? Shocking !! You would create a chilling effect on the ability of the people to bring their cases for adjudication in a court of law.

Freedom !!

Liberty !!

Posted by: Patrick_M | February 23, 2010 8:31 PM | Report abuse

When it comes to the legal premium on health care, I've heard everything from three to thirty percent. If we take the low number, three percent is about the average net profit for the health insurance industry so tort reform is at least as relevant as single-payer.

We need to focus on the production side of health costs, however. A doctor in other countries pays only a small fraction of the liability costs a doctor here pays and, for most doctors, premiums here are certainly more than three percent of overhead. Thus, if we reduce the high costs doctors pay for liability insurance, we should expect doctors to be able to lower their fees. The same would be true throughout the health care field.

Just capping damages may not solve the problem. We need to pursue some of the idead discussed here and reeducate the American people to understand that if someone make an honest mistake that's not like winning the lottery for the patient.

I talk to Europeans whenever possible about their health care. They are gererally satisfied but they also think we are a bunch of sue happy maniacs.

Posted by: bobsteph1234 | February 23, 2010 8:32 PM | Report abuse

"We need to pursue some of the idead discussed here and reeducate the American people to understand that if someone make an honest mistake that's not like winning the lottery for the patient."

Another socialist trying to re-educate freedom-loving patriots. Will the re-education be held in your FEMA camps?

I assume that you would apply this principle for all torts, and that you are not trying to single out doctors as magical beings who are above the law it, right?

So if (for example) your next door neighbor is cleaning his loaded gun, and it goes off and the bullet comes through your window and kills your wife, that negligence would be another "honest mistake" for which your wrongful death action should not be like a "lottery" win? Maybe a $200 fine?

And, BTW you lib, I absolutely disagree that the total cost of defending malpractice claims exceeds the total cost of insurance company profits.

You big guvmunt commies are always trying to take away our freedoms!!!

Posted by: Patrick_M | February 23, 2010 8:51 PM | Report abuse

"Moreover, these days lawyers can win million dollar awards even if a doctor tells a patient if he doesn't diet he will have a heart attack---and then the patient does exactly that!!"

FastEddie? FastOsama is more like it!!

hey, EddieOsama, how about giving us the case citation for one of those million dollar diet-heart attack cases??? I want to look one up, you socialist enemy of patriotic dead people who don't diet!!!

UNLESS YOU CAN"T---BECAUSE YOU LIE LIKE HUGO CHAVEZ!!!

Posted by: Patrick_M | February 23, 2010 9:16 PM | Report abuse

Patrick_M, yes I am a Liberal and proud of it. You are referring to progressives and I am certainly not one of those. You seem to equate freedom with the absence of responsibility. I disagree. If someone wrongs me, I only want what damages have been done and not punitive damages because they made an honest mistake.

BTW, if my neighbor was cleaning his gun and shot my wife, I wouldn't get squat. He doesn't have deep pockets.

Posted by: bobsteph1234 | February 23, 2010 9:40 PM | Report abuse

"BTW, if my neighbor was cleaning his gun and shot my wife, I wouldn't get squat. He doesn't have deep pockets."

What if Al Gore shot my wife??? What then pinko?? I don't get any money from your pal Al, King of the Fake Global Warming, for my beautiful dead wife??? Slap on the wrist of that election stealer???

Don't interfere with my constitutional freedoms with your federal nanny state!!! Next thing you know you'll tell me I can't have a dog or I can't wear a green shirt with Sarah Palin's winky face on it !!!!!!

Look up REFORM in the dictionary!!! It means slavery!!! Tort reform, Health Reform, it is all just Big Brother taking away your FREEDOM!!!

Posted by: Patrick_M | February 23, 2010 9:48 PM | Report abuse

WISEWON WANTS DEATH PANELS!!!!

"Standardization of awards, similar to workers' comp, is a reasonable discussion, however."

Ok, that's nice, so when you Democrat doctors take out the wrong kidney from me, and I DIE!!! how much will your commie rationing death panel chart of death prizes give me???

Like...FIVE CENTS???

Posted by: Patrick_M | February 23, 2010 10:17 PM | Report abuse

How about a bit of LANGUAGE reform up front, Ezra (and Jon)?

'Malpractice' is a doctor's failure to practice medicine in a proper manner.

There is no 'malpractice system' as far as I know, because there's no claim that there's a system of improper medical practice in place.

There's a **medical tort system** that might or might not be in need of reform, depending on one's point of view.

One would properly call such reform 'medical tort reform.'

'Malpractice reform' would properly refer to efforts to **reduce the amount of actual malpractice that takes place**, rather than efforts to change how its victims are compensated.

The weird thing is, a lot has been written in recent years about how to reduce the amount of medical malpractice. Both Ezra and Jon are surely aware of this literature.

And yet, here they are, talking about 'malpractice reform' as if it had something to do with lawyers rather than doctors and hospitals.

Crazy.

Posted by: rt42 | February 23, 2010 10:44 PM | Report abuse

I REMEMBER 50 YEARS AGO FIRESTONE TIRE AND RUBBER.VERY GOOD INSURANCE. COST ME ONE HOURS WAGES A WEEK.IN THE POLICY IT GAVE AMOUNTS IF YOU LOSE A EYE $X,000.00 A HAND X,000.00 NO LAWSUITS- YOU PAID FOR INSURANCE- NOT A RIGHT TO SUE.DOCTOR GOOF'S YOU GET X,000.00 NO MORE NO LESS.
HIGH COST OF HEALTH CARE IS ANTITRUST PROTECTION 3 BIG COMPANYS OWNING MANY MORE SMALLER ONE OR JUST THREE BIG COMPANYS MAKEING HUGE PROFITS.
TO BAD WE CAN'T PUT THE HUGE LOBBY MONEY SPENT TO DEFEAT HEALTH CARE REFORM TO LOWER THE COST OF HEALTH CARE REFORM? ADD THE CEO'S MUTI MILLION DOLLAR SALARIES AND BONUSES YES WE CAN CUT HEALTH COST BY 50 %

Posted by: theoldmansays | February 23, 2010 11:06 PM | Report abuse

"IT GAVE AMOUNTS IF YOU LOSE A EYE $X,000.00 A HAND X,000.00 NO LAWSUITS- YOU PAID FOR INSURANCE- NOT A RIGHT TO SUE.DOCTOR GOOF'S YOU GET X,000.00 NO MORE NO LESS."

theoldmansays,

It sounds like you were paying for an insurance payout from the company for an industrial accident, sort of like a private worker's comp system, not for insurance against a mistake by a doctor.

If you have gone to see your own doctor and somehow lost an eye because of some "goof" by the doctor, you could have still sued your doctor...no coverage you bought from Firestone would have prevented that.

I agree with you that if the insurance companies put the money they spend fighting reform into lower premiums, that would be a nice start toward lowering the cost of health care.

Posted by: Patrick_M | February 23, 2010 11:49 PM | Report abuse

"How about a bit of LANGUAGE reform up front, Ezra (and Jon)?"

Exactly! Ezra's on propaganda mode here - the only problem with our medical system is all those greedy, incompetent doctors. So tort reform is a repugnant term to be banished forever from the lexicon.

But I digress - we really need rational debate about medical tort, malpractice and health reform in general.

In an ideal world, where cost is no concern we really don't need tort reform. Doctors will continue to order all the tests and procedures they can think of to avoid the dreaded 'failure to diagnose'.

But if costs are really a concern we need to come down from our ivory towers and give up the sloganeering. There ought to be compromises on core ideals on part of both sides - Ezra and his ilk are under the delusion that the ideals of their party are the truly sacred ones and the ideals of those on the other side of the aisle represent misguided fanaticism.

This transparent self-serving bias is the real reason Obama and the Dems have lost credibility with the american public on Healthcare.

Posted by: centrist7 | February 24, 2010 7:12 AM | Report abuse

"The civil courts are creatures of state law, and state and local jurisdictions set their own laws and court rules. To impose a federal standard would be a crime against states' rights."

LOL. This from someone who demands federal authority over all healthcare. What a hypocrite!

"These are TORT cases, so the plaintiffs' lawyers take them on contingency. That gives the plaintiff's law firm a built-in incentive NOT to waste months or even years if the case is a dog."

You have to understand contingency fees to appreciate the nonsense behind that statement. All cases are tried at the expense of plaintiffs. Even cases that lose are paid out of a slice the lawyer receives from some other client's award. Rates are sufficiently padded that lawyers can take weaker cases where the potential reward makes trying it worthwhile.

I should also point out that for all the screaming you socialist libs do, about the international ranking of our healthcare, you seem quite blind to the fact that contingency fees are forbidden or severely restricted in most of the systems you want to emulate. Instead you bah like dutiful sheep that tort reform is not a factor.

Also, our system costs legitimate malpractice victims with solid cases and low damages, who frequently can't find representation. Lawyers won't take a case without a significant award.

"Furthermore, even when a claim is not successful, that does not mean it was brought in bad faith. Many cases with merit are simply too difficult to prove or are very close calls."

This is absolutely NOT evidence in favor of doctors paying their own fees. If the evidence supports it, the Court can withhold fee assignment as a form of judgement. But your statement implies that "close" cases can still be a doctor's fault, and that's simply not a premise a Court can base its actions on once it has found for the doctor. It's like saying "You weren't convicted, but since I'm sure you're guilty of *something*, we're gonna make you pay for your attorney." They're guilty or they're not, and the fees can be part of an award. But there's no reason doctors should have to pay fees by default whenever they win a case.

"if the Brown family had lost their wrongful death (a tort) action against OJ Simpson, should OJ's lawyers been allowed to collect from the vicitim's family's law firm?"

Of course. Which part of "lost" is so difficult for you, lib?

Posted by: cpurick | February 24, 2010 7:44 AM | Report abuse

As your post illustrates, there are myriad ways to think about, let alone act on "malpractice reform". And since there are fewer risks of system-destroying patterns of adverse selection and fewer possible gains from scale, why take this power away from states (many of whom have already enacted various types of tort reform)? Better to have 51 malpractice reform laboratories.

I'm a little surprised at the Republican position on this, but chalk it up to needing a bogeyman in order to a) misdirect public anger and b) be seen having an alternative, preferably one which the Dems won't accept, halting what might develop into real negotation.

For those looking for data on defensive medicine, try the CBO. They found it to be about 4-9% of health care costs, but that the possible benefits from tort reform were slim. For one thing, it's already enacted in many place, and for another, you're never going to eliminate it with even the most draconian tort reform (say, execution of those who bring suits deemed frivolous) -- the threat of lawsuit is just one reason for doctors to engage in cover-your-ass behavior, and arguably not the most prominent one. They want to appear good at their jobs, they don't want to risk losing patients, etc.

Posted by: TheodoreLittleton | February 24, 2010 8:12 AM | Report abuse

As your post illustrates, there are myriad ways to think about, let alone act on "malpractice reform". And since there are fewer risks of system-destroying patterns of adverse selection and fewer possible gains from scale, why take this power away from states (many of whom have already enacted various types of tort reform)? Better to have 51 malpractice reform laboratories.

I'm a little surprised at the Republican position on this, but chalk it up to needing a bogeyman in order to a) misdirect public anger and b) be seen having an alternative, preferably one which the Dems won't accept, halting what might develop into real negotation.

For those looking for data on defensive medicine, try the CBO. They found it to be about 4-9% of health care costs, but that the possible benefits from tort reform were slim. For one thing, it's already enacted in many place, and for another, you're never going to eliminate it with even the most draconian tort reform (say, execution of those who bring suits deemed frivolous) -- the threat of lawsuit is just one reason for doctors to engage in cover-your-ass behavior, and arguably not the most prominent one. They want to appear good at their jobs, they don't want to risk losing patients, etc.

Posted by: TheodoreLittleton | February 24, 2010 8:12 AM | Report abuse

Patrick_M:

Doctor sued by man who had heart attack, claiming doctor didn't do enough....
http://www.ama-assn.org/amednews/2004/02/09/prca0209.htm


Some other links of interest!:
http://www.triallawyersinc.com/healthcare/hc05.html

http://www.usatoday.com/news/politics/2007-09-24-1141838821_x.htm

Posted by: FastEddieO007 | February 24, 2010 9:03 AM | Report abuse

Republicans support tort reform, because they imagine that all trial lawyers are Democrats. Presumably lawyers representing corporations, who are highly instrumental in helping them circumvent laws constraining their ability to trample on consumers, are above scrutiny. That being said, there is no doubt that the entire system surrounding the issue of malpractice is in need of an overhaul. Nuisance lawsuits and elevated malpractice insurance fees are crippling doctors and hospitals.

But here's my question, if Congress enacts sensible tort reform re malpractice, will insurance companies respond by enacting a sensible fee structure for malpractice insurance? Something tells me that without serious oversight, they won't. Why? Because thus far there is not a shred of evidence that insurance companies base their fees on actual circumstances. They don't have to, because unlike many other industries, they have an anti-trust loophole that allows them to run roughshod over the very idea of competition or accountability. I would be very interested to see a study comparing the amount of money paid out by insurance companies on malpractice lawsuits versus the amount of money paid in by doctors and hospitals. I suspect one would see a wide profit margin that belies their excuses for charging outrageous fees which negatively impact the ability of doctors and hospitals to properly attend to their patients. Consequently, I would hope that any legislation that addresses tort reform also includes provisions for serious oversight of the response by insurance companies.

Posted by: Koko3 | February 24, 2010 10:18 AM | Report abuse

On the subject of malpractice and tort reform, I agree that claimants who win are entitled to that guilty verdict for the defendant. But where, in the Constitution (if we're really talking Constitutional rights), WHERE does the Constitution guarantee any of us money?

Posted by: whisperonthewind | February 24, 2010 10:34 AM | Report abuse

cpurick,

"LOL. This from someone who demands federal authority over all healthcare. What a hypocrite!"

The point of my little troll parody, which was obviously lost on you, is that there is a philosophical inconsistency in the arguments made by "conservatives" on this subject.

On one hand they oppose federal efforts to broaden access to health care access, because of the "freedom" being lost through such steps as the individual mandate, but these same "conservatives" also argue in favor of federal tort reform, which is simply an effort to arbitrarily take away the the "freedom" now enjoyed by individuals to sue for negligent malpractice.

Freedom from mandated participation in health insurance is good, freedom to bring a case in front of a jury is bad. Federal control of health insurance is bad, federal control of the civil courts is good.

I support health care reform and I open to including reasonable tort reform to lower costs. I would also think that if someone on the other side were opposed to one, that person would be opposed to both. Strangely, that is not the case.

Posted by: Patrick_M | February 24, 2010 11:02 AM | Report abuse

"Doctor sued by man who had heart attack, claiming doctor didn't do enough....
http://www.ama-assn.org/amednews/2004/02/09/prca0209.htm"


This six year old article notes that "It is still rare for a plaintiff to prove that type of medical malpractice, and that case is now on appeal." It does not specify the amount of the award. And the facts in the case appear to be opposite of the facts that you claimed. According to the article, the patient claims he was NOT given proper instructions about steps needed to reduce his risk, including stopping smoking. According to you: "Moreover, these days lawyers can win million dollar awards even if a doctor tells a patient if he doesn't diet he will have a heart attack---"

Your version has the "even if a doctor tells," the case seems to be about what happens when the doctor fails to tell so...very different facts.

And even beyond that, this is a very brief mention in a doctor's magazine, so we perhaps don't have the full story about the case. Cases that make it to trial tend to have substantial merit, cases with big doubt for either side tend to settle out.


"Some other links of interest!:
http://www.triallawyersinc.com/healthcare/hc05.html

http://www.usatoday.com/news/politics/2007-09-24-1141838821_x.htm"

Yes, articles about tort reform. As I stated above, I am more than willing to accept reasonable tort reform and steps to reduce the incidence of malpractice, even though experience in the states seems to indicate that savings after capping awards have not significantly lowered the cost of medical care and health insurance to the consumer.

Likewise, I shall assume that if you are comfortable with the federal government re-writing all the rules and laws for the states' civil courts and limiting your rights as an invidual to receive an award from a jury after a finding of gross negligence, you are now also comfortable with the federal government eliminating health insurance exclusions, imposing mandatory coverage, and offering subsidies to those in need, to create universal access to affordable health care.

bgmma50 tells us that "consistency is the hobgoblin of small minds," so I am sure your beliefs about the proper boundaries of the role of the federal government are completely consistent, right?

Posted by: Patrick_M | February 24, 2010 11:36 AM | Report abuse

"On the subject of malpractice and tort reform, I agree that claimants who win are entitled to that guilty verdict for the defendant. But where, in the Constitution (if we're really talking Constitutional rights), WHERE does the Constitution guarantee any of us money?"

To use the argument I would have used in my troll parody...

If you follow your thinking to its logical conclusion, the federal government can take away any right that is not specifically named in the Constitution. The right to wear the color blue is not set forth in the Bill of Rights, so you don't have that right, etc.

Hopefully you do agree that the US Constitution permits your state's Constitution to establish civil courts, and to make the laws that govern those civil courts? So, the conservative argument ought to be that if the people in state A want to cap awards for pain and suffering, and the poeple in state B do not, it is none of the federal governments business to impose a federal standard on them both.

For some reason, "conservatives" seem to be ok with "big government" interference when it comes to this particular topic.

Posted by: Patrick_M | February 24, 2010 11:47 AM | Report abuse

For what it's worth Patrick, I'm not in favor of reducing malpractice remedy where malpractice exists.

But I'm in favor of a lower standard of care with (slightly) worse outcomes, and such reforms require immunity from the pressure that causes overuse in the form of defensive medicine in the first place.

I also have a problem with "malpractice insurance." It would seem that such insurance may keep bad doctors from going out of business when perhaps they should. And such insurance is not supposed to allow you to win $10 million by suing a doctor who only has $2 million of his own. There's no reason a victim should be able to collect more than a doctor's personal net worth.

Finally, it's clear that OB/GYNs, neurologists, radiologists are disproportionately sued. Bad outcomes from some causes, it would seem, are tested by juries more than others. Surely some of these doctors have committed no malpractice -- yet eventually they will *all* be sued.

Personally, I think you're just a bleeding heart who thinks injured people should be compensated even if it costs all of us and not just the doctor who should be paying.

And consistent with other views you've expressed, you're clearly blind to the cumulative effect of all these awards on the system as a whole. You have a problem saying no to interests you can see when you are unable to directly see the interests who must pay for your "justice."

Posted by: cpurick | February 24, 2010 11:53 AM | Report abuse

cpurick,

I of course could take issue with a number of things that you say in your post, but this time I won't.

Instead, I will say in all sincerity that I applaud the fact that you are not in favor of a federally-imposed reduction of remedies, where true malpractice is proven in court. That's philosophical consistency, and consistency is good on either side.

And (brace yourself) I agree with you that there is something fundamentally flawed about the current system of insuring against malpractice, and allowing doctors who have had any track record of claims with merit to remain in the health care system.

Posted by: Patrick_M | February 24, 2010 12:28 PM | Report abuse

Cpurick,

"I should also point out that for all the screaming you socialist libs do, about the international ranking of our healthcare, you seem quite blind to the fact that contingency fees are forbidden or severely restricted in most of the systems you want to emulate."

I am a liberal who supports overhauling our current system of malpractice, for many of the reasons that Wisewon mentions above. But it's worth pointing out that most of these other countries' malpractice systems also (1) compensate a much greater percentage of injured patients than the American system does (2) have a lower standard than negligence in order for the patient to receive compensation (hence the term "no-fault). Those elements are completely absent from the reforms that you & most other conservatives are advocating. If you had your way, even fewer injured patients would get compensation.

Posted by: PeterH1 | February 24, 2010 3:50 PM | Report abuse

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