Why wont Dems go for tort reform?

[sooner n houston]

Great read -

On Wednesday the president told Congress "I will not stand by while the special interests use the same old tactics to keep things exactly the way they are." In fact, the administration is standing by to allow its most special, special interest to drive this debate. What the tort bar wants, the tort bar gets. Health insurers should be so lucky.

The legal question has become the starkest symbol of a broken health discussion, and offers insight into this presidency. For Republicans, legal reform has become a litmus test, proof that Democrats have no interest in a deal, and therefore a reason to step back. For many Americans, legal reform has become proof that President Obama is more interested in an ideological triumph than his stated goal of lowering health costs.

Tort reform is a policy no-brainer. Experts on left and right agree that defensive medicine—ordering tests and procedures solely to protect against Joe Lawyer—adds enormously to health costs. The estimated dollar benefits of reform range from a conservative $65 billion a year to perhaps $200 billion. In context, Mr. Obama's plan would cost about $100 billion annually. That the president won't embrace even modest change that would do so much, so quickly, to lower costs, has left Americans suspicious of his real ambitions.

It's also a political no-brainer. Americans are on board. Polls routinely show that between 70% and 80% of Americans believe the country suffers from excess litigation. The entire health community is on board. Republicans and swing-state Democrats are on board. State and local governments, which have struggled to clean up their own civil-justice systems, are on board. In a debate defined by flash points, this is a rare area of agreement.

The only folks not on board are a handful of powerful trial lawyers, and a handful of politicians who receive a generous cut of those lawyers' contingency fees. The legal industry was the top contributor to the Democratic Party in the 2008 cycle, stumping up $47 million. The bill is now due, and Democrats are dutifully making a health-care down payment.

During the markup of a bill in the Senate Health Committee, Republicans offered 11 tort amendments that varied in degree from mere pilot projects to measures to ensure more rural obstetricians. On a party line vote, Democrats killed every one. Rhode Island senator and lawyer Sheldon Whitehouse went so far as to speechify on the virtues of his tort friends. He did not, of course, mention the nearly $900,000 they have given him since 2005, including campaign contributions from national tort powerhouses like Baron & Budd and Motley Rice.

Even Senate Finance Chair Max Baucus, of bipartisan bent, has bowed to legal powers. The past two years, Mr. Baucus has teamed up with Wyoming Republican Mike Enzi to offer legislation for modest health-care tort reform in states. That Enzi-Baucus proposal had been part of the bipartisan health-care talks. When Mr. Baucus released his draft health legislation this weekend, he'd stripped out his own legal reforms. The Montanan is already in the doghouse with party liberals, and decided not to further irk leadership's Dick Durbin ($3.6 million in lawyer contributions), the Senate's patron saint of the trial bar.

Over in the House the discussion isn't about tort reform, but about tort opportunities. During the House Ways & Means markup of a health bill, Texas Democrat Lloyd Doggett ($1.5 million from lawyers) introduced language to allow freelance lawyers to sue any outfit (say, McDonald's) that might contribute to Medicare costs. Only after Blue Dogs freaked out did the idea get dropped, though the trial bar has standing orders that Democrats make another run at it in any House-Senate conference.

It says everything that Mr. Obama wouldn't plump for reform as part of legislation. The president knows the Senate would never have passed it in any event. Yet even proposing it was too much for the White House's legal lobby. Mr. Obama is instead directing his secretary of health and human services to move forward on test projects. That would be Kathleen Sebelius, who spent eight years as the head of the Kansas Trial Lawyers Association.

The issue has assumed such importance that even some Democrats acknowledge the harm. With bracing honesty, former DNC chair Howard Dean recently acknowledged his party "did not want to take on the trial lawyers." Former Democratic Sen. Bill Bradley, in a New York Times piece, suggested a "grand bipartisan compromise" in which Democrats got universal coverage in return for offering legal reform. The White House yawned, and moved on.

It isn't clear if Republicans would or should take that deal, but we won't know since it won't be offered. The tort-reform issue has instead clarified this presidency. Namely, that the bipartisan president is in fact very partisan, that the new-politics president still takes orders from the old Democratic lobby.

http://online.wsj.com/article/SB10001424052970203440104574404984255332524.html#m od=article-outset-box

[Ton Loc]

I thought on Wednesday he said something to the effect that he would consider it but he didn't think it was a silver bullet.

[Howzit]

I thought on Wednesday he said something to the effect that he would consider it but he didn't think it was a silver bullet.

He said the same thing to the AMA a few months ago, yet with all the Healthcare Reform discussion and activity nothing has really been proposed.

"We'll look at it" means it won't be part of the bill, or of the proposed cost reduction.

[sooneron]

I'm all for tort reform. What's the going rate on a dead loved one via malpractice?

[Howzit]

tree fiddy.

[delhalew]

I thought on Wednesday he said something to the effect that he would consider it but he didn't think it was a silver bullet.

He's gonna say whatever he thinks we want to hear. Watch his actions, not his words.

[Mjcpr]

He's gonna say whatever he thinks we want to hear. Watch his actions, not his words.

This must be some kind of new political tactic.

[OklahomaTuba]

Why? Because the trial lawyers are the liberals largest special interest group.

And while the rest of us will have to sacrifice to give others free health care while bankrupting the country and taking more cash from our paychecks, the libz are too chicken*** to make their beloved special interest group make any sort of sacrifice.

Howard Dean says as much here:

http://www.youtube.com/watch?v=IdpVY-cONnM

[Ton Loc]

He's gonna say whatever he thinks we want to hear. Watch his actions, not his words.

Small amount of sarcasm not felt. I'm well aware of the actions versus the words. But I don't know if any one person has had any actions tied directly to them and the reform that can lead me to know exactly what their true intentions are.

[batonrougesooner]

So much would be accomplished if we were to get medical malpractice cases out of the civil court system and instead establish a health court. These cases are generally too complex and nuanced to be truly understood by a lay jury. Ultimately these trials often times end up being decided by which ever side has the slickest lawyer and or the most convincing experts. I have alot more to share on the subject but I'm too busy dodging malpractice bullets in the ER.

[I Am Right]

Who are the evil ones-- Doctors or lawyers, me thinks its lawyers.

[sooneron]

I failed to mention that I am a registered independent. I have mostly dem tendencies with the exception of how dems feel welfare and other programs should be run. Oh, and the death penalty and solid military spending.
Basically, I'm fiscally conservative with an attitude of "I don't care what you do in your bedroom as long as kids or animals aren't involved."

Thanks for letting me get this off my chest.
Like my old sig used to say,
"Neither party is mine, not the jack *** or the elephant!"

[Oldnslo]

Tort reform is utter crap. Tell me again why you want to take power away from juries?

Doesnt anyone remember the Ford Pinto? I used to work with the guy who turned over Ford's memo. You know, the one where they figured out what anticipated wrongful death verdicts would be against the cost of repairing the car so it wouldn't blow up? Of course, getting the memo into evidence kind of skewed the numbers.

Corporations exist to make money, not to be happy joyjoy fun nice people. If you have nothin to stand in their way you get... the Ford Pinto.

As for defensive medicine? It exists. It's real. And it isn't the reason medical expenses are out of whack. It's just the whipping boy.

Generally, insurance companies are losing their respective nether parts due to poor investment returns. THAT, more than any other factor, is what is driving the rates for doctors.

If someone outside the country were to curtail the jury system, we'd rail against the injustice of it. Here, we're choosing to do it to ourselves.

[sooneron]

I'm just saying that there needs to be some sort of cap on what you can sue for- why does one person get 10 mill for a dead husband and another get 2.4mill? Yeah, I know one has a better lawyer. I don't think it should be that way.

[Oldnslo]

I'm just saying that there needs to be some sort of cap on what you can sue for- why does one person get 10 mill for a dead husband and another get 2.4mill? Yeah, I know one has a better lawyer. I don't think it should be that way.

Because one guy was a day laborer who beat his wife and didn't give his ex any child support but the other was a CPA with with a wife and twins in diapers who was on the board of directors of his church?

Why not let a jury decide. Do you really think that 12 people are so easily led astray? Are my powers of persuasion so devastating? Why do you want to protect companies from juries?

[sooneron]

Are my powers of persuasion so devastating?

Maybe:O

[Turd_Ferguson]

Because one guy was a day laborer who beat his wife and didn't give his ex any child support but the other was a CPA with with a wife and twins in diapers who was on the board of directors of his church?

Why not let a jury decide. Do you really think that 12 people are so easily led astray? Are my powers of persuasion so devastating? Why do you want to protect companies from juries?Then why pick the jury? Go get 12 random people and let them decide. Would you go with that?

[batonrougesooner]

As for defensive medicine? It exists. It's real. And it isn't the reason medical expenses are out of whack. It's just the whipping boy.

Generally, insurance companies are losing their respective nether parts due to poor investment returns. THAT, more than any other factor, is what is driving the rates for doctors.

If someone outside the country were to curtail the jury system, we'd rail against the injustice of it. Here, we're choosing to do it to ourselves.

Is is real and is does exist I agree. And it adds a huge cost to the practice of medicine. I can't tell you how many tests and scans that are ordered daily just to avoid the retrospectoscope. Hindsight is always 20/20. Doctors get sued much more on bad outcomes than true malpractice.

I agree the insurance companies are trying to recoup losses in raising their rates. The insurance rates aren't the issue, just a secondary factor.

Medmal is the trough that both the plantiffs and defense attorneys feed at. I for one wish the doctors would just collectively agree to quit playing the tort game. Drop insurance, require all patients to sign releases or agree to arbitration.

[KABOOKIE]

The coffee was really hot!!!

A flammable material container exploded!!!

Duh. :rolleyes:

[Oldnslo]

Then why pick the jury? Go get 12 random people and let them decide. Would you go with that?

I like being able to find out when people have an axe to grind against my client. I've had many jurors dismissed for cause, both as a prosecutor, when prospective jurors had relatives in the joint, and as a civil lawyer.

If you were on trial or going to trial, you'd want to know if each of the jurors was going to be fair, right? That's the whole exercise of voir dire. You examine the prospective jurors to kick off the ones who you think won't give your client a fair shake.

Picking a jury is an inexact science at best. In civil State court, 18 are called and subjected to voir dire. Each side kicks off 3. The 12 who are left try the case. Sometimes you call 19 so that the last one called can be an alternate. See, you don't get to pick who is ON the jury, you just get to get rid of 3 you don't want on there.

[JohnnyMack]

Because one guy was a day laborer who beat his wife and didn't give his ex any child support but the other was a CPA with with a wife and twins in diapers who was on the board of directors of his church?

Why not let a jury decide. Do you really think that 12 people are so easily led astray? Are my powers of persuasion so devastating? Why do you want to protect companies from juries?

Have you seen the kind of people that comprise a jury? I mean I'm sure you have. Which doesn't surprise me as to why you would want those kind of people deciding the financial fates.

[Oldnslo]

Medmal is the trough that both the plantiffs and defense attorneys feed at. I for one wish the doctors would just collectively agree to quit playing the tort game. Drop insurance, require all patients to sign releases or agree to arbitration.

Yeah, I'd like to live in a world where I couldn't be sued for a f'up, too.

But, I don't.

Arb is no picnic, either. I've been on the receiving end of HUGE screw jobs in arb. One guy got MORE THAN HE ASKED FOR. that wasn't so easy to explain.

[Oldnslo]

Have you seen the kind of people that comprise a jury? I mean I'm sure you have. Which doesn't surprise me as to why you would want those kind of people deciding the financial fates.

Depends on where you are. Juries in Washington and Cleveland counties are traditionally conservative. Way conservative. Juries in Creek county are generally more giving.

And that's fine. You've just got to know where you are and what you're doing.

[batonrougesooner]

Yeah, I'd like to live in a world where I couldn't be sued for a f'up, too.

But, I don't.

Arb is no picnic, either. I've been on the receiving end of HUGE screw jobs in arb. One guy got MORE THAN HE ASKED FOR. that wasn't so easy to explain.


That's my point. I'm not talking about the true screw ups. I live and see this daily. I see the work of my colleagues in all fields daily. I rarely see real big time f-ups. If medmal was only so neat and tidy. The large majority of these cases are not for true gross negligence. Yes they happen but that is not how the medmal attorneys butter their bread. Its through the multitude of cases where there is an unfortunate bad outcome or the application of a difficult if not impossible standard in hindsight. One that is either obvious in the comfort of a deposition or court room but not so much in real time on the frontlines of medical practice.

To say otherwise is entirely dishonest.

[Howzit]

Tort reform is utter crap. Tell me again why you want to take power away from juries?

Doesnt anyone remember the Ford Pinto? I used to work with the guy who turned over Ford's memo. You know, the one where they figured out what anticipated wrongful death verdicts would be against the cost of repairing the car so it wouldn't blow up? Of course, getting the memo into evidence kind of skewed the numbers.

Corporations exist to make money, not to be happy joyjoy fun nice people. If you have nothin to stand in their way you get... the Ford Pinto.

As for defensive medicine? It exists. It's real. And it isn't the reason medical expenses are out of whack. It's just the whipping boy.

Generally, insurance companies are losing their respective nether parts due to poor investment returns. THAT, more than any other factor, is what is driving the rates for doctors.

If someone outside the country were to curtail the jury system, we'd rail against the injustice of it. Here, we're choosing to do it to ourselves.

I don't know what the answer is, but status quo ain't working. Does anyone really argue that a huge component of escalating medical costs is due to malpractice insurance and litigation? Something has to be done to reel this in some way.

[Soonerfan88]

Two examples of why tort reform is needed:

I had a kidney stone earlier this year. It was an obvious diagnosis to the ER nurses and the doctor yet I had to have a CT scan (x-ray wasn't good enough) to confirm before they would let me go. That unnecessary scan cost almost $2500. If my simple kidney stone has only 1 defensive test for that much money, imagine how much excess is involved in something more complicated.

My boss was a juror on a malpractice case earlier this year. The deceased was over 90 yrs old with prior heart problems, emphysema, and other issues I can't remember. His family signed the consent forms for surgery knowing the risks yet sued the doctor & hospital because he died of an infection. Trial took two weeks of endless medical arguing but she said deliberation was less than an hour and assigned 0% responsibility to the defendents.

I'm not saying there aren't incompetent or lazy doctors making bad decisions or that malpractice suits should be completely eliminated, but there is room for much needed reform. It is disheartening to see our elected representatives unwilling to put the needs of the country in front of their own greed but I guess I shouldn't expect anything else from politicians, whatever their affiliation.

[Howzit]

Two examples of why tort reform is needed:

I had a kidney stone earlier this year. It was an obvious diagnosis to the ER nurses and the doctor yet I had to have a CT scan (x-ray wasn't good enough) to confirm before they would let me go. That unnecessary scan cost almost $2500. If my simple kidney stone has only 1 defensive test for that much money, imagine how much excess is involved in something more complicated.

My boss was a juror on a malpractice case earlier this year. The deceased was over 90 yrs old with prior heart problems, emphysema, and other issues I can't remember. His family signed the consent forms for surgery knowing the risks yet sued the doctor & hospital because he died of an infection. Trial took two weeks of endless medical arguing but she said deliberation was less than an hour and assigned 0% responsibility to the defendents.

I'm not saying there aren't incompetent or lazy doctors making bad decisions or that malpractice suits should be completely eliminated, but there is room for much needed reform. It is disheartening to see our elected representatives unwilling to put the needs of the country in front of their own greed but I guess I shouldn't expect anything else from politicians, whatever their affiliation.


Yeah? Well what about the Ford Pinto?

[I Am Right]

Tort reform is utter crap. Tell me again why you want to take power away from juries?

Doesnt anyone remember the Ford Pinto? I used to work with the guy who turned over Ford's memo. You know, the one where they figured out what anticipated wrongful death verdicts would be against the cost of repairing the car so it wouldn't blow up? Of course, getting the memo into evidence kind of skewed the numbers.

Corporations exist to make money, not to be happy joyjoy fun nice people. If you have nothin to stand in their way you get... the Ford Pinto.

As for defensive medicine? It exists. It's real. And it isn't the reason medical expenses are out of whack. It's just the whipping boy.

Generally, insurance companies are losing their respective nether parts due to poor investment returns. THAT, more than any other factor, is what is driving the rates for doctors.

If someone outside the country were to curtail the jury system, we'd rail against the injustice of it. Here, we're choosing to do it to ourselves.

Tell me again why lawyers follow ambulances and troll on TV for Clients.

[JohnnyMack]

So much would be accomplished if we were to get medical malpractice cases out of the civil court system and instead establish a health court. These cases are generally too complex and nuanced to be truly understood by a lay jury. Ultimately these trials often times end up being decided by which ever side has the slickest lawyer and or the most convincing experts. I have alot more to share on the subject but I'm too busy dodging malpractice bullets in the ER.

This.

The overall makeup of people who serve on a jury isn't something I'm often impressed by.

[Oldnslo]

Two examples of why tort reform is needed:

I had a kidney stone earlier this year. It was an obvious diagnosis to the ER nurses and the doctor yet I had to have a CT scan (x-ray wasn't good enough) to confirm before they would let me go. That unnecessary scan cost almost $2500. If my simple kidney stone has only 1 defensive test for that much money, imagine how much excess is involved in something more complicated.

My boss was a juror on a malpractice case earlier this year. The deceased was over 90 yrs old with prior heart problems, emphysema, and other issues I can't remember. His family signed the consent forms for surgery knowing the risks yet sued the doctor & hospital because he died of an infection. Trial took two weeks of endless medical arguing but she said deliberation was less than an hour and assigned 0% responsibility to the defendents.

I'm not saying there aren't incompetent or lazy doctors making bad decisions or that malpractice suits should be completely eliminated, but there is room for much needed reform. It is disheartening to see our elected representatives unwilling to put the needs of the country in front of their own greed but I guess I shouldn't expect anything else from politicians, whatever their affiliation.

Is it because the doctors get paid in part on what procedures are performed?

Newsflash: everyone can point out a smudge on someone else's hand.

My point here is that it is a mistake to take power away from a jury. It is also a mistake to raise hurdles to the courthouse.

In my opinion, all of the things people truly seem to want in this reform could be accomplished by Oklahoma's state court system adopting the Federal rules and cases supporting summary judgment. Summary judgment is where the Judge, upon a Motion, examines the evidence to see whether Plaintiff can make his case. Oklahoma's law has a STRONG disposition to jury trial and against summary judgment (in fact, it's in the OK constitution). Under the current caselaw, the state court judge must consider, essentially, not merely what evidence HAS been presented, but what evidence COULD be presented.

In other words, it's tough to get a motion for summary judgment granted, and even tougher to get it to hold up on appeal. In Federal Court, less so.

Unfortunately, disucssing arcane legal rulings isn't sexy, and it doesn't bring in campaign dollars.

I SHOULD BE KING!

[47straight]

Because it won't reduce health care costs. Texas passed it 6 years ago and parts of Texas are still the poster child for Medicare waste.

[CobraKai]

Because one guy was a day laborer who beat his wife and didn't give his ex any child support but the other was a CPA with with a wife and twins in diapers who was on the board of directors of his church?

Why not let a jury decide. Do you really think that 12 people are so easily led astray? Are my powers of persuasion so devastating? Why do you want to protect companies from juries?

I know the jury I was on was led astray very easily. The entire jury, in a locked jury room, agreed that the defendant was not libel, but half the jurors wanted to give her a judgment anyway because "insurance would pay for it, not the defendant." It took an entire day to get the sane members of the jury to finally convince the other 6 that busting the insurance company was NOT a victimless crime.

[CobraKai]

Yeah? Well what about the Ford Pinto?

If the Ford Pinto gets a medical license and starts treating patients I would suggest it should fall into this conversation. Otherwise I think it is totally irrelevant. I think for the purpose of healthcare most people are talking about medical tort reform, not product liability.

[Chuck Bao]

I am surprised that I agree with a WSJ article on a social issue.

Still the article is slanted and misleading as it did not mention political contributions from the legal profession to the Republican party as a comparison.

As President Obama said, tort reform is not a silver bullet.

In my opinion, that is true. But, health care reform cannot be complete without bringing down the cost of malpractice insurance.

This is a simple question. Which of these two evils would our society rather bear: 1) 30-40% of our children without health insurance or 2) no large pay-outs in millions of dollars in case the bread winner of the family does unfortunately die from medical malpractice.

Okay, that is an extreme choice. We already expect excellence from our doctors. Anything less is unacceptable, but to make it so much of a burden on the health care system, in my opinion, is effectively denying health care to those who truly need it now and in the future.

I do not agree with anyone saying tort reform will lead to more unsafe practices by our money grubbing corporations and take the sting out of jury of peers’ verdicts. Our capitalistic system does need checks and balances and that is made very clear over the last several years even without the Ford Pinto or even the Picher, Oklahoma example.

Punitive damage verdicts are still important, but within reason.

We and our work output, have been discounted by China. Our principles are not discounted, though.

I still will vote tort reform, NOW! I will vote for the candidate who votes for health care reform and an important part of that is tort reform.

[Howzit]

If the Ford Pinto gets a medical license and starts treating patients I would suggest it should fall into this conversation. Otherwise I think it is totally irrelevant. I think for the purpose of healthcare most people are talking about medical tort reform, not product liability.

I wasn't the first to mention it.

And it was sarcasm.

And you're a big poopy head.

[JohnnyMack]

My point here is that it is a mistake to take power away from a jury. It is also a mistake to raise hurdles to the courthouse.

In my opinion, all of the things people truly seem to want in this reform could be accomplished by Oklahoma's state court system adopting the Federal rules and cases supporting summary judgment. Summary judgment is where the Judge, upon a Motion, examines the evidence to see whether Plaintiff can make his case. Oklahoma's law has a STRONG disposition to jury trial and against summary judgment (in fact, it's in the OK constitution). Under the current caselaw, the state court judge must consider, essentially, not merely what evidence HAS been presented, but what evidence COULD be presented.

I would imagine this has a lot to do with lawyerin' types knowing that juries in general aren't always comprised of our finest group of intellectuals.

My Father served as a ALJ with the SSA and oversaw the distribution of disability payments. He had almost 40 years of experience as a prosecutor at almost every level, received extensive training in the field and still said he struggled understanding all the information presented to him.

How is it you can with a straight face tell me that some juror off the street can make informed, accurate assessments of complex medical and legal issues?

[stoops the eternal pimp]

I wasn't the first to mention it.

And it was sarcasm.

And you're a big poopy head.

sling it....

[delhalew]

Frivolous lawsuit bad. Ugh.

[batonrougesooner]

It's not about getting payed. Nobody gets paid more for ordering a CT scan. The radiologist gets paid to read it but they don't order the study.

The issue isn't about malpractice insurance premiums. It's about the style of practice that forces you to investigate every possibility without ever being allowed to be wrong. The profession is more and more being held to a standard of 100% perfection.

Bad outcomes do not equal bad medicine.

[TMcGee86]

Because it won't reduce health care costs. Texas passed it 6 years ago and parts of Texas are still the poster child for Medicare waste.

Exactly. Not only that, my insurance premiums and doctor's bills haven't dropped a red cent.

In fact, both have increased in the past 6 years.

That argument is such a pipe dream it's silly. Like doctors are ever going to lower rates, especially when a huge increase in profit margin is staring them in the face. Wake up peeps. Docs like money. It's why the majority of them got into the bidness.

And it isn't like those big shiny new machines are going anywhere the moment tort reform is passed. Someone still has to pay for those things. And they don't make money sitting in the corner collecting dust.

[I Am Right]

Frivolous lawsuit bad. Ugh.

Can't disagree, just makes too much sense!

[Frozen Sooner]

Medmal is the trough that both the plantiffs and defense attorneys feed at. I for one wish the doctors would just collectively agree to quit playing the tort game. Drop insurance, require all patients to sign releases or agree to arbitration.

Such an arrangement would be illegal under various anti-trust acts.

Not to mention that such a contract would likely be unenforceable.

[Frozen Sooner]

OnS-

Does Oklahoma's constitutional preference for jury trial extend to demurrers and motions for directed verdict or just for summary judgment? That's a horrible burden on ∂.

And speaking of Creek County-heh, they're so π friendly they're actually part of one of the Civ Pro chestnuts (as I'm sure you're aware). Worldwide Volkswagen is all about some defendants trying to get out of Creek County by removing non-diverse defendants.

[sooner n houston]

Exactly. Not only that, my insurance premiums and doctor's bills haven't dropped a red cent.

In fact, both have increased in the past 6 years.

That argument is such a pipe dream it's silly. Like doctors are ever going to lower rates, especially when a huge increase in profit margin is staring them in the face. Wake up peeps. Docs like money. It's why the majority of them got into the bidness.

And it isn't like those big shiny new machines are going anywhere the moment tort reform is passed. Someone still has to pay for those things. And they don't make money sitting in the corner collecting dust.

According to this article you would have seen much steeper rates without tort reform.

----------------------------------------------------------------
When general surgeon Dino Saracino, MD, watched his liability insurance premiums spike 30% per year over 10 years while practicing in Bedford, Pa., he knew he had to make a move.

The annual expense had mounted to $80,000 by 2004 and took a toll on Dr. Saracino, who often handled additional pediatric or critical care cases because he was the only general surgeon in the rural county.

When Texas voters in 2003 approved a constitutional amendment limiting noneconomic damages in medical liability cases to $250,000 for physicians, Dr. Saracino saw a break. In 2004, after considering other areas, Dr. Saracino applied for a medical license in the Lone Star state. Meanwhile, Pennsylvania, which has no cap, would become home to some of the highest medical liability insurance rates in the nation.

Despite a yearlong delay for license approval and the work of establishing his practice in El Paso, "it was absolutely worth the wait," said Dr. Saracino, whose insurance premiums are about a quarter of what he paid in Pennsylvania.

"I can spend more time with patients because I don't have such a high fixed expense to generate by seeing a certain number of patients or doing a certain number of procedures. And I don't have to do all the things I was responsible for before because of the availability of other specialists," he said.

As Texas marks the fifth anniversary of tort reforms this month, scores of doctors continue to chart paths similar to Dr. Saracino's. From drastic cuts in liability insurance rates to a record influx of doctors, physicians attribute a marked improvement in access to care to the 2003 reforms. Those reforms limit noneconomic damages but do not cap economic awards.

http://www.ama-assn.org/amednews/2008/09/08/prl20908.htm

[47straight]

According to this article you would have seen much steeper rates without tort reform.

----------------------------------------------------------------
When general surgeon Dino Saracino, MD, watched his liability insurance premiums spike 30% per year over 10 years while practicing in Bedford, Pa., he knew he had to make a move.

The annual expense had mounted to $80,000 by 2004 and took a toll on Dr. Saracino, who often handled additional pediatric or critical care cases because he was the only general surgeon in the rural county.

When Texas voters in 2003 approved a constitutional amendment limiting noneconomic damages in medical liability cases to $250,000 for physicians, Dr. Saracino saw a break. In 2004, after considering other areas, Dr. Saracino applied for a medical license in the Lone Star state. Meanwhile, Pennsylvania, which has no cap, would become home to some of the highest medical liability insurance rates in the nation.

Despite a yearlong delay for license approval and the work of establishing his practice in El Paso, "it was absolutely worth the wait," said Dr. Saracino, whose insurance premiums are about a quarter of what he paid in Pennsylvania.

"I can spend more time with patients because I don't have such a high fixed expense to generate by seeing a certain number of patients or doing a certain number of procedures. And I don't have to do all the things I was responsible for before because of the availability of other specialists," he said.

As Texas marks the fifth anniversary of tort reforms this month, scores of doctors continue to chart paths similar to Dr. Saracino's. From drastic cuts in liability insurance rates to a record influx of doctors, physicians attribute a marked improvement in access to care to the 2003 reforms. Those reforms limit noneconomic damages but do not cap economic awards.

http://www.ama-assn.org/amednews/2008/09/08/prl20908.htm

"Oh look at this cute anecdote that we, a non-biased party, are reporting on."

Sadly, this is pretty much the same statistical rigor done in medical research.

[Turd_Ferguson]

"Oh look at this cute anecdote that we, a non-biased party, are reporting on."

Sadly, this is pretty much the same statistical rigor done in medical research.So, what's your point?

[Okla-homey]

Tort reform? Bah.

Personally, I generally prefer preservation of folks' constitutional rights. And I'm consistent because I feel the Seventh Amendment is just as sacred and the Second Amendment. Far too many of my ideological fellow travelers favor broad interperetation of constitutionally based gun rights but seem fine with severely restricting folks' access to the court system, despite clear language in the Constitution (in the "Bill if Rights" first ten amendments no less) to the contrary.


“ In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law. ” -- VII Amendment to the United States Constitution

Folks, med mal defense is part of what I do. Every day. Know this, about 90% of med mal cases get dismissed or settled. Of the 10% that get to trial, about 80% those end up with a defense verdict vindicating the doctor.

Very rarely, a doc gets popped. And when that happens, given everything the plaintiff has to navigate enroute to that verdict, you can bet your boots that doctor not only messed-up big time, but he or she unquestionably should have known better. As in, practically no one in that doc's specialty would have done what he or she did under the circumstances. As in, this doc prolly shouldn't be allowed to practice medicine anyway because he or she is terminally goofy.

[JohnnyMack]

It's really quite a shock what side of this argument our lawyerin type folks have come down on in this particular argument.

[StoopTroup]

Folks, med mal defense is part of what I do. Every day. Know this, about 90% of med mal cases get dismissed or settled. Of the 10% that get to trial, about 80% those end up with a defense verdict vindicating the doctor.

Very rarely, a doc gets popped. And when that happens, given everything the plaintiff has to navigate enroute to that verdict, you can bet your boots that doctor not only messed-up big time, but he or she unquestionably should have known better. As in, practically no one in that doc's specialty would have done what he or she did under the circumstances. As in, this doc prolly shouldn't be allowed to practice medicine anyway because he or she is terminally goofy.

You used to see Doctors on the witness stand helping vindicate other Doctors too. However the Insurance Companies decided not to pursue trials as they would rather settle. Doctors then were hit with huge increases in their premiums. Not a thing they could do about it either.

Tort Reform. You may not like it...but you also might not have seen it come about if the insurance companies hadn't gotten in the way of defending more cases.

[Oldnslo]

It's really quite a shock what side of this argument our lawyerin type folks have come down on in this particular argument.

Sucks that the people who have experience in dealing with an issue disagree with your opinion?

[JohnnyMack]

Sucks that the people who have experience in dealing with an issue disagree with your opinion?

So you have no comment on my earlier post regarding my dad's experience?

[StoopTroup]

Sucks that the people who have experience in dealing with an issue disagree with your opinion?

I've got no problem with folks making a living as Legal Counsel. The problem I have is with the Insurance Companies.

I can understand why folks who make a living on settlements don't want to change anything too. Hell...who wouldn't want to make a ton of dough for doing very little.

[Oldnslo]

So you have no comment on my earlier post regarding my dad's experience?

No. I'm sure your father is a reasonable man. Further, his comment seems to support the adage, "The more you know, the more you know that you don't know".

Our system was set up so that impartial minds could make a determination. Certainly, there have been times that the other lawyer and I have scratched our heads trying to come up with how the jury split whatever baby was before them, but tinkering with the jury system has been done before, with less than perfect results. See, Star Chamber.

[Okla-homey]

I can understand why folks who make a living on settlements don't want to change anything too. Hell...who wouldn't want to make a ton of dough for doing very little.


ST,
With all due respect, you are talking out your beehind.

You don't get a "ton of dough" until you've presented your entire case and it's become clear to the defendant he is up the proverbial defacatory watercourse with no means of propulsion.

And that, my friend, costs big bucks to make happen. Big bucks that firms essentially "wager" based on the strength of their client's case assessed very early on. And given one other absolute; "your client's story will never be better than the first time he tells it to you," very often, you go all in for someone, only to learn later, there a ton of problems with their case that is gonna sink it...and no money for you.

[StoopTroup]

ST,
With all due respect, you are talking out your beehind.

You don't get a "ton of dough" until you've presented your entire case and it's become clear to the defendant he is up the proverbial defacatory watercourse with no means of propulsion.

And that, my friend, costs big bucks to make happen. Big bucks that firms essentially "wager" based on the strength of their client's case assessed very early on. And given one other absolute; "your client's story will never be better than the first time he tells it to you," very often, you go all in for someone, only to learn later, there a ton of problems with their case that is gonna sink it...and no money for you.

Your talking about making a ton of dough off one case. I'm talking about making a living avoiding going to trial.

Why would you want insurance companies to change the settlement stuff and take 80% to trial? You wouldn't.

You know I'm not talking out my *** about that. Insurance companies wouldn't take the risk of putting a Doctor on the stand anymore as folks wanted to crucify them for their money and the insurance companies felt they could statically do better not trying the cases. Most Doctors aren't negligent hacks and settlements are the main reason their premiums went up.

[Oldnslo]

Your talking about making a ton of dough off one case. I'm talking about making a living avoiding going to trial.

Why would you want insurance companies to change the settlement stuff and take 80% to trial? You wouldn't.

You know I'm not talking out my *** about that. Insurance companies wouldn't take the risk of putting a Doctor on the stand anymore as folks wanted to crucify them for their money and the insurance companies felt they could statically do better not trying the cases. Most Doctors aren't negligent hacks and settlements are the main reason their premiums went up.

Dude, you don't have a clue.

Not only do insurance companies take stands on cases they want to go to trial, but the doctors themselves do. Most professional liability policies, unlike personal ones, allow the professional to make certain determinations about settlement. If the doc doesn't want to settle, it's really hard to get his carrier to do so.

In personal policies, like your car and home insurance, you don't get such input. The carrier decides whether to settle or defend the case.

[Frozen Sooner]

So let's get a few things out there:

1. The standard for malpractice is generally whether or not the physician acted within the standards of their profession in their (or similar) community. That's a pretty tough hurdle to clear for a plaintiff. In fact, very few industries get to set their own standards for care. Custom can set a floor for care, but rarely a ceiling. Judge Posner has some good stuff on when custom should set the standard of care that boils down to who bears the cost of injury. In the case of medical malpractice, I think his formulation applies, so no problem there. Just be aware, though, it's MUCH tougher to prove medical malpractice breach than it is to prove breach in a normal negligence claim.

2. In most jurisdictions (don't know about OK, sounds like it's limited there) judges have discretion to control outcomes when the plaintiff, as a matter of law, has not made their case. This can happen either at pleading (assuming the plaintiff's filings show no cause of action, the defendant moves the court for dismissal) after discovery (motion for summary judgment-looking at the evidence available, there's no way the plaintiff can make their case) or after argument (motion for directed verdict-if there's no way a reasonable jury can take the facts as presented and come out with a verdict for the plaintiff, the judge says so.) In fact, in some cases even if the jury has come back with a verdict that's blatantly against the facts, the judge can enter a judgment n.o.v. or alternatively order a new trial.

3. Most med-mal policies I've seen (though this is changing) have a "no-settle" clause that forces the insurance company to go to trial regardless of the strength of their case if the insured refuses settlement. Thus there's some pretty weak cases for the defendant that are getting to trial.

So let's not pretend that the only "problem" here is juries, because the judges are looking at these cases as well and saying that the plaintiff has met their requirement for a prima facie case.

[Frozen Sooner]

I see OnS made the point about "no settle" clauses while I was typing.

Here's my deal: you hold yourself out as a professional and you **** up-and that's **** up, not make a reasonable diagnostic decision that turns out to be wrong, or go with a reasonable course of treatment that doesn't work, but **** UP, like completely missing a diagnosis because you don't keep up with the literature or prescribing a pill that will aggravate an underlying condition you should have known about-you PAY.

Same standard applies to all professionals. If your lawyer misses the statute of limitations on a tort claim, he pays. If your insurance agent sells you a policy that doesn't protect against a peril that he should have reasonably known you'd be exposed to, he pays.

[Frozen Sooner]

And the dreaded triple-post:

Everyone agrees that a "frivolous" lawsuit is bad. Define "frivolous" in the context of a tort claim.

[StoopTroup]

Dude, you don't have a clue.

Not only do insurance companies take stands on cases they want to go to trial, but the doctors themselves do. Most professional liability policies, unlike personal ones, allow the professional to make certain determinations about settlement. If the doc doesn't want to settle, it's really hard to get his carrier to do so.

In personal policies, like your car and home insurance, you don't get such input. The carrier decides whether to settle or defend the case.

Really. If it was worth my time...I bet I could prove you wrong on that. The Doctors themselves might be some of the ones that went to Law School and Medical School.

Your gonna defend your Profession. I understand that.

You don't have to take a shot at me not having a clue as I've seen it 1st hand. You and the insurance Companies changed the Medical Profession and you know it.

Don't even try to change my mind about that. Your wasting your time.

[Frozen Sooner]

ST-you can't prove OnS wrong on what you bolded because it's true. Many doctors have specific clauses in their med mal policies that specifically give them the authority to reject settlement.

[StoopTroup]

Froze...

You make my point in even saying they have clauses in their policies. They never used to have to have that.

I would never have time to interview all the Doctors I would need to interview to prove you wrong and on top of that...most of them would be scared to comment more than likely.

[Frozen Sooner]

Er, no, I don't make your point for you. Such clauses used to be even more common than they are now. The reason for such clauses is that professionals have a stake in their reputation and may place a higher value on it than the insurance company does.

Your point was that you could do enough research and talk to enough doctors that you could prove that doctors don't have a say in which cases go to trial. They most certainly and explicitly do.

[JohnnyMack]

Ya see it's not the lawyers fault. It's just the way the system is.

It's not the doctors fault. They gotta raise what they charge to cover their insurance premiums.

It's not the insurance companies fault. They gotta raise what they charge to cover their bets.

I'm not trying to sound indignant when I say this but no one involved in this would openly admit to gouging anyone. They're all able to justify it, all the way down the line. I won't sit here and act like if someone told me they were going to enact legislation that affected how much I could make on certain parts of my particular revenue stream that I'd be willing to just say, "sure, here ya go, take it". What I'm saying is that everyone is all up in arms about healthcare reform but no one (at the Washington level) has proposed anything that will meaningfully LOWER the overall cost of healthcare in this country. Industries and their lobbies are doing the expected. Girding up their loins for battle and working hard at justifying their existence and when this is all said and done not much will have changed for me and the rest of the *******s who get up and go to work every day.

[Frozen Sooner]

Actually, it's the AMA's fault. The United States has significantly higher barriers to entry into the medical profession than any other industrialized nation. Creates monopoly power which is necessary to recoup entry costs.

[JohnnyMack]

:D

[StoopTroup]

Actually, it's the AMA's fault. The United States has significantly higher barriers to entry into the medical profession than any other industrialized nation. Creates monopoly power which is necessary to recoup entry costs.

Now we're getting somewhere. Your Profession just took advantage of that group of pompous asses. :D

[Frozen Sooner]

I'm telling you, if we'd just license any schmo off the street to practice medicine health care costs would fall dramatically. :D

ST, I apologize for my snarky tone above.

[StoopTroup]

I'm telling you, if we'd just license any schmo off the street to practice medicine health care costs would fall dramatically. :D

ST, I apologize for my snarky tone above.

No problem. As Homey knows...My Father and Uncle were D.O.'s.

They were D.O.'s in the 1950's. Both had plenty of M.D.'s learn new Surgical procedures from them. They were really good at what they did and back then residencies were really tough. Most Doctors didn't let you train on their patients unless they knew you. They became great Surgeons being committed to their work. I filed insurance for them while I was in College and saw things really change during the late 70's and early 80's.

The AMA has finally realized that they no longer should fight the D.O.'s and seem to work together much more in various Hospitals. At least that's the way it is here in Tulsa. Around the Country I am sure there are strongholds of M.D.'s who think they are better than D.O.'s.

My Father and Uncle did many a free surgery in their lifetime too. That didn't pay their insurance premiums either. They did those surgeries as they believed in the "Hippocratic Oath" and had strong principles and ethics. Something that has drastically changed in the last 20 years IMO.

My own personal Doctor would never go on record but he's told me that he doesn't understand some of the new Docs out there anymore. They don't work weekends. Some of them don't even work 5 days a week. They have incompetent office staff and don't take time to get to know their patients as they try to cram as many people in and out of their office as fast as they can and never take a risk of giving a patient medical care they might need to avoid having to explain to the insurance company about why he or she (The Doctor)had it done. No helping their patients. Patients are cattle that provide them a nice living. That's it.

Some seem happy with that too.

That's what the AMA has done. Of course...all of this is my opinion and I think you can clearly see why I chose not to be a Doctor. Any of you M.D.s who feel I'm wrong are welcome to your opinion as well.

I think you've sat around long enough though and should fight back to get better control of your profession.

[StoopTroup]

Again...I'm more for the masses and how all of this affects their lives. The Insurance Companies, The Medical Profession, The Legal Profession as well as the Government have all had a hand in making Medical Care nearly unbearable for the Average American.

I also don't believe Tort Reform will fix any of it as to many folks will have to lose something.

I'm mostly going off as it used to be lots simpler until lawsuits became the thing to do and Insurance Companies decided to use statistics to affect how much Doctors got paid. Welfare was also instrumental in helping narrow down pricing. They limited how much they would pay Doctors for many procedures and the Insurance Companies quickly picked up on that. I don't blame them either...that's good business.

What we see now from the Insurance Companies is a much different thing. They are all powerful and Doctors as well as patients hate them. Attorneys....you may love it...you may hate it....but even when I needed one of you to help me...I never felt like you were there to help me. You were just a middleman that I was required to have or I would have suffer great difficulties in getting my bills paid.. My guy made $5000 for showing up and filing a little paperwork. Hell most folks could settle these small disputes if they had an arbiter.

When Workers Comp was changed...it wasn't to help the person that got hurt. It was to help these Companies that thought it would lower their costs. I'm still not sure it helped them either. From what I've seen...it's made more of these Urgent Care Places pay for themselves overnight. You go in there and they basically tell you what they are allowed to do and what they aren't allowed to do.

Again...Tort Reform more than likely isn't going to help. I think it's needed for the big picture however. On it's own...it's just changing who gets how much and how.

I hope I didn't make any of you mad...I'm just frustrated as to how much BS we have to deal with as Patients and Bill Payers.

[Okla-homey]

I'll toss out one more thing. IMHO, the vast majority of physicians (MD's and DO's) are competent, committed professionals. Those guys and gals generally don't have anything to worry about with regard to huge malpractice insurance "tails" that make it financially unfeasible to join an existing practice group or practice on their own. Unless they happen to be jerks with horrid bedside manner and poor interpersonal skillz*

OTOH, there a few goofballs who for whatever reason (addictions, wierd seckshual proclivities, laziness, mental illness, unspecified distractions and/or senility), really should not be allowed to practice. However, the medical licensing authority in most states, for whatever reason, seems extremely reluctant to force a doc to hang up his/her steth -- even when its abundantly clear that doc poses a danger to his/her patients.

All that to say, in a very real sense, malpractice lawsuits can and do force a marginal doc to take up another line of work. And that's a good thing. In fact, its about the most effective defense against medical stoogery the public has.

*One more thing, and perhaps this is more an observation about people in general. Patients generally don't sue doctors they like. Even in the face of horrible outcomes. Therefore, I would encourage any and all medicos to BE NICE! It'll undoubtedly pay big dividends in lawsuits that don't get filed.

[StoopTroup]

Good points Homey.

[StoopTroup]

Also...I may retire soon so if any of you need me to get a client really pissed before he takes the stand...let me know. I'll be pricing my work on a case by case basis. :D ;)

[Okla-homey]

Attorneys....you may love it...you may hate it....but even when I needed one of you to help me...I never felt like you were there to help me. You were just a middleman that I was required to have or I would have suffer great difficulties in getting my bills paid.. My guy made $5000 for showing up and filing a little paperwork. Hell most folks could settle these small disputes if they had an arbiter.



Don't get me started on binding arbitration. It's increasingly being included in all sorts of transactions as the consumer's only remedy. Just for giggles, read some of that fine print on the next piece of software, large appliance or car you buy.

Here's the dealio on why consumers often get the shaft from an arbitrator. Firstly, its expensive and guess who pays? That's right, the seller of the subject item. Now, if you are the arbitrator, and you rely on industry to pay your exorbitant fees, WTF are you most inclined to side for? That's right, the party who is position to retain you next week. Not the poor schmuck who bought a POS.

Me? I'll take the good old adverserial system. After all, as a very smart d00d once said, "vigorous cross-examination is the most effective engine for deriving the truth ever devised by mankind."

[StoopTroup]

True that once it became a standard way of doing business it would also attract people who would take advantage.

It's kind of like folks who think they could build their own house and quickly find out the sub-contractors are each and maybe all conspiring to fleece then on every job I guess.

[Okla-homey]

Good points Homey.

See, the thing is, like most issues, this "tort reform" rallying cry has deep and far reaching implications for regular folks. Like when having too much fun as a kid and your mom called out, "it's all a game until someone gets hurt" is still pretty solid wisdom.

When people align behind "tort reform," what they're really doing is selling themselves short, before they get hurt by some faceless corporate entity who runs "cost-benefit analyses" in determining how safe an item or practice must be.

Put another way, the boys in the boardroom bring in the bean-counters and actuarial types to advise them on the odds of a product or service hurting someone. Then, they hang a pricetag on what they'll likely pay if they get sued as a result. The simple fact is, if the amount they'll likely pay if someone gets hurt is artificially constrained by "tort reform" caps on money damages, that translates directly to meaning they can afford to put riskier products and services into the stream of commerce and still be assured they'll have a healthy profit margin. But the folks lose. Everywhere its tried.

On the other hand, if they know that if someone gets hurt, they'll pay what the jury thinks is fair, unconstrained by some statutory caps on money damages, they necessarily try harder to make safer products and services as a basic profit protection measure.

Yessir. I'm a trial lawyer. And proud of it. Just like my hero Abraham Lincoln. Nothing makes me happier than helping folks who have gotten shafted and have run out of options. But I still wouldn't advise folks to be sue-happy. That's a loser. See my sig below citing Honest Abe.

[Frozen Sooner]

See, the thing is, like most issues, this "tort reform" rallying cry has deep and far reaching implications for regular folks. Like when having too much fun as a kid and your mom called out, "it's all a game until someone gets hurt" is still pretty solid wisdom.

When people align behind "tort reform," what they're really doing is selling themselves short, before they get hurt by some faceless corporate entity who runs "cost-benefit analyses" in determining how safe an item or practice must be.

Put another way, the boys in the boardroom bring in the bean-counters and actuarial types to advise them on the odds of a product or service hurting someone. Then, they hang a pricetag on what they'll likely pay if they get sued as a result. The simple fact is, if the amount they'll likely pay if someone gets hurt is artificially constrained by "tort reform" caps on money damages, that translates directly to meaning they can afford to put riskier products and services into the stream of commerce and still be assured they'll have a healthy profit margin. But the folks lose. Everywhere its tried.

On the other hand, if they know that if someone gets hurt, they'll pay what the jury thinks is fair, unconstrained by some statutory caps on money damages, they necessarily try harder to make safer products and services as a basic profit protection measure.

Yessir. I'm a trial lawyer. And proud of it. Just like my hero Abraham Lincoln. Nothing makes me happier than helping folks who have gotten shafted and have run out of options. But I still wouldn't advise folks to be sue-happy. That's a loser. See my sig below citing Honest Abe.

Thank you Learned Hand. ;)

[StoopTroup]

At the end of all this though...it still doesn't change my feelings about how all of this got out of hand. I'll never feel any safer when I go under the knife or some PA or Nurse is prescribing my treatment or Medication.

[Okla-homey]

Thank you Learned Hand. ;)

Just promise ol' Homey this: When one of your perfessers says you should try to avoid becoming personally vested in the outcome of a case, ask him or her "if you don't really care how it how it turns out, how can your client be assured he or she is getting your best effort?" I heard that "stay emotionally neutral" crapola for three years in law skool and it's utter poppycock.

If I didn't really care, I sure as heck wouldn't work through the night prepping for a deposition or court appearance on a plaintiff's case in which I don't make a dime unless I win.

[Frozen Sooner]

Just promise ol' Homey this: When one of your perfessers says you should try to avoid becoming personally vested in the outcome of a case, ask him or her "if you don't really care how it how it turns out, how can your client be assured he or she is getting your best effort?" I heard that "stay emotionally neutral" crapola for three years in law skool and it's utter poppycock.

If I didn't really care, I sure as heck wouldn't work through the night prepping for a deposition or court appearance on a plaintiff's case in which I don't make a dime unless I win.

That's why they're profs, Homey. Guys who're getting fat consulting fees don't have to care how the case turns out. :D

If'n you can't tell from this thread, by the way, I spent my afternoon working on my Torts outline. My professor got his PhD in Economics and JD from Chicago, so he's a big Hand/Posner guy. He beats Hand's formula from Carroll into us pretty hard.

[Chuck Bao]

This thread, in my opinion, has unfortunately devolved into a three-way suck off.

I think people will eventually decide that their day in court for suing for mal practice has to take a back seat to the young children and their ability to get basic care. Is it not the lesser of the two evils?

Anyway, that is the best argument for state insurance. The state is not going to pay out those huge claims. A jury by peers is not going to award those huge claims if it takes money out of their own pocket.

[StoopTroup]

If I didn't really care, I sure as heck wouldn't work through the night prepping for a deposition or court appearance on a plaintiff's case in which I don't make a dime unless I win.

I knew there was something I liked about you. Now I know why. :D

[Frozen Sooner]

This thread, in my opinion, has unfortunately devolved into a three-way suck off.

I think people will eventually decide that their day in court for suing for mal practice has to take a back seat to the young children and their ability to get basic care. Is it not the lesser of the two evils?

Anyway, that is the best argument for state insurance. The state is not going to pay out those huge claims. A jury by peers is not going to award those huge claims if it takes money out of their own pocket.

I'm very sorry that it offends you when people with actual training (some less than others, obviously) weigh in on a subject.

I'll make sure to make reference to your suck-offs when discussing financial matters.

[StoopTroup]

I'll make sure to make reference to your suck-offs when discussing financial matters.

That's hawt! :D :hot: :pop:

[JohnnyMack]

When lawyers talk about how great
lawyers are, you should take it with a grain of salt.

[Sooner_Havok]

I'm very sorry that it offends you when people with actual training (some less than others, obviously) weigh in on a subject.


Just enough tort law to make you dangerous?

[StoopTroup]

When lawyers talk about how great
lawyers are, you should take it with a grain of salt.

...and a lot of tequila.

http://rlv.zcache.com/take_life_with_a_grain_of_salt_tshirt-p2354014038133878523pvi_400.jpg

[Okla-homey]

When lawyers talk about how great
lawyers are, you should take it with a grain of salt.

YOU NEED ME ON THAT WALL!:D

That's fine. But for trial lawyers, you would be driving a car with a steel dash and no airbag, non-shatterproof glass, no seatbelts, conventional (non-ABS) brakes and a gas tank that could explode on impact. That, and your child would be sleeping in flammable PJ's in a bedroom painted with lead paint and he would know at least one friend who took a lawn dart to the brain and as a result will be enjoying coloring books for Christmas the rest of his life.;)

[Tulsa_Fireman]

And my car and lifestyle has what to do with this argument again?

[JohnnyMack]

And my car and lifestyle has what to do with this argument again?

Yeah, the back-patting festival got us a little off course. My initial argument was that jury trials aren't the best venues to decide the outcome of complex medical cases, because juries are often times comprised of people I wouldn't want to go bowling with, much less issue a decision on a multi-millon dollar settlement.

[Bourbon St Sooner]

Tort reform is utter crap. Tell me again why you want to take power away from juries?

Doesnt anyone remember the Ford Pinto? I used to work with the guy who turned over Ford's memo. You know, the one where they figured out what anticipated wrongful death verdicts would be against the cost of repairing the car so it wouldn't blow up? Of course, getting the memo into evidence kind of skewed the numbers.

Corporations exist to make money, not to be happy joyjoy fun nice people. If you have nothin to stand in their way you get... the Ford Pinto.

As for defensive medicine? It exists. It's real. And it isn't the reason medical expenses are out of whack. It's just the whipping boy.

Generally, insurance companies are losing their respective nether parts due to poor investment returns. THAT, more than any other factor, is what is driving the rates for doctors.

If someone outside the country were to curtail the jury system, we'd rail against the injustice of it. Here, we're choosing to do it to ourselves.

And who got compensated in the Ford Pinto case? The people who were burned up in the cars get pennies while the lawyers get rich. The same thing with tobacco settlements and asbestos. Is that equitable compensation? I'm not saying these companies shouldn't pay but the system for distributing outcomes is out of whack. There's too much incentive to game the system.

I've seen this defensive medicine in practice. After my wife had our child, she had bad headaches and went in for an MRI on Friday afternoon. They found she had hydrocephalis and scheduled her for surgery on Monday when the surgical team was in. So they admitted to the hospital all weekend for "observation", when they could have given her pain medicine and told her to come back in Monday morning. She's taking up a $2000 a night hospital bed because if something happened over the weekend we'd sue them.

We can't continue to pay for trial lawyers getting rich.

[TMcGee86]

According to this article you would have seen much steeper rates without tort reform.

----------------------------------------------------------------
When general surgeon Dino Saracino, MD, watched his liability insurance premiums spike 30% per year over 10 years while practicing in Bedford, Pa., he knew he had to make a move.

The annual expense had mounted to $80,000 by 2004 and took a toll on Dr. Saracino, who often handled additional pediatric or critical care cases because he was the only general surgeon in the rural county.

When Texas voters in 2003 approved a constitutional amendment limiting noneconomic damages in medical liability cases to $250,000 for physicians, Dr. Saracino saw a break. In 2004, after considering other areas, Dr. Saracino applied for a medical license in the Lone Star state. Meanwhile, Pennsylvania, which has no cap, would become home to some of the highest medical liability insurance rates in the nation.

Despite a yearlong delay for license approval and the work of establishing his practice in El Paso, "it was absolutely worth the wait," said Dr. Saracino, whose insurance premiums are about a quarter of what he paid in Pennsylvania.

"I can spend more time with patients because I don't have such a high fixed expense to generate by seeing a certain number of patients or doing a certain number of procedures. And I don't have to do all the things I was responsible for before because of the availability of other specialists," he said.

As Texas marks the fifth anniversary of tort reforms this month, scores of doctors continue to chart paths similar to Dr. Saracino's. From drastic cuts in liability insurance rates to a record influx of doctors, physicians attribute a marked improvement in access to care to the 2003 reforms. Those reforms limit noneconomic damages but do not cap economic awards.

http://www.ama-assn.org/amednews/2008/09/08/prl20908.htm

You realize that article doesn't say that don't you?

It doesn't say a single thing about the Doctor charging less, or the patients rates dropping.

Instead, it says the Doctor gets to work less to make the same money, and oh by the way his malpractice rates are lower, fattening his pocket even more.

[Bourbon St Sooner]

It's really quite a shock what side of this argument our lawyerin type folks have come down on in this particular argument.

You mean folks with a vested personal interest ($) are likely to protect that interest? And the rest of us without a powerful lobby paying tens of millions of dollars to buy politicians pay.

Thus trial lawyers and goldman sachs run this country and the rest of us drown in debt. The Rise and Fall of the American Empire.

[TMcGee86]

I think people will eventually decide that their day in court for suing for mal practice has to take a back seat to the young children and their ability to get basic care. Is it not the lesser of the two evils?

I'm sorry, I mean no disrespect but that analysis is just comical.

The poor little children are more important than holding doctors accountable for malpractice?

What about the children of the dads and moms killed by negligent doctors?

To take it to the opposite but equally ridiculous extreme, what you're basically saying is that children of parents who don't work and live off the government tit are more important than children of hard working parents that can afford insurance, because the latter should realize that despite their hardships, the greater good is served, hey comrade?

Sorry but I throw up in my mouth a little when people resort to the "think of the children" gambit.

[tommieharris91]

Froze just started law school so he is an expert in all legal matters, don't you people get it?

Homey's a practicing lawyer.

[TMcGee86]

You mean folks with a vested personal interest ($) are likely to protect that interest? And the rest of us without a powerful lobby paying tens of millions of dollars to buy politicians pay.

Thus trial lawyers and goldman sachs run this country and the rest of us drown in debt. The Rise and Fall of the American Empire.

You think the doctors don't have lobbyists?

Look, I understand the sentiment, but it just doesn't play out that way in real life. Texas isn't a bastion of cheap health care, despite tort reform. Instead we are a haven for doctors looking to get richer.

[Oldnslo]

ST, actually, my opinion is that there is one group most responsible for ALL of the problems we're discussing: Insurance Companies.

Bourbon, Wow. That's a lot of vitriol. In contingent fee cases, the lawyer cannot take more than half. Most of the time, it's less, but in one of these cases, where the cash outlay is huge, recovery uncertain, and the time is long... half. But, there is a difference between "normal" cases and class actions. Recovery to the class representative is limited to $50K, and they have to agree to that limitation before the case moves forward.

Usually, people are upset that the hospital or doctor discharged them before they wanted. Your wife got extra attention... and you're pissed. Just hydrocephalus? What could go wrong there?

[49r]

This happens a lot around here.

You know something about it? You've been studying it for how many years? Well you are wrong... I stayed at Holiday Inn Express last night!

Fixed that for ya.

[Fraggle145]

Nevermind.

[OKC-SLC]

I am one physician who doesn't believe that 'tort reform' would virtually eliminate the costs of health care. However, anyone who alleges that the cost of defensive medicine is not burdensome has no experience with the medical field.


Know this, about 90% of med mal cases get dismissed or settled. Of the 10% that get to trial, about 80% those end up with a defense verdict vindicating the doctor.

It is hard to lose a malpractice suit, for sure. And I firmly believe that negligent doctors should be out of practice; one way to expedite that is to levy a punitive judgment upon them. But I would submit that one reason judgments against doctors are not common is due to the extent that defensive medicine is practiced.

[Frozen Sooner]

I am one physician who doesn't believe that 'tort reform' would virtually eliminate the costs of health care. However, anyone who alleges that the cost of defensive medicine is not burdensome has no experience with the medical field.



It is hard to lose a malpractice suit, for sure. And I firmly believe that negligent doctors should be out of practice; one way to expedite that is to levy a punitive judgment upon them. But I would submit that one reason judgments against doctors are not common is due to the extent that defensive medicine is practiced.

Would you stipulate that defensive medicine sometimes catches things that non-defensive medicine wouldn't?

[OKC-SLC]

Would you stipulate that defensive medicine sometimes catches things that non-defensive medicine wouldn't?

I am sure that anecdotally there are cases of this. I'm not sure if the cost-benefit of this is favorable.

As a quasi-example--why don't we do total body CT scans and MRIs on everybody above a certain age, say 30 or 40? We would certainly pick up some early cancers, but at an tremendous financial and emotional expense. Not only are there costs of the imaging studies but also there are costs associated with chasing clinically insignificant incidental findings. This is not too far off what happens with defensive medicine--tests which clinically make no sense are performed to avoid the danger of the retrospectoscope.

[Frozen Sooner]

I am sure that anecdotally there are cases of this. I'm not sure if the cost-benefit of this is favorable.

As a quasi-example--why don't we do total body CT scans and MRIs on everybody above a certain age, say 30 or 40? We would certainly pick up some early cancers, but at an tremendous financial and emotional expense. Not only are there costs of the imaging studies but also there are costs associated with chasing clinically insignificant incidental findings. This is not too far off what happens with defensive medicine--tests which clinically make no sense are performed to avoid the danger of the retrospectoscope.

Not disputing your general point, but I'd say the fact that you don't perform a full CT scan on a healthy person of 35 is an example of the custom setting the standard of care and working. If that's the community standard of care in such cases, then it's a non-starter for malpractice.

[OKC-SLC]

Not disputing your general point, but I'd say the fact that you don't perform a full CT scan on a healthy person of 35 is an example of the custom setting the standard of care and working. If that's the community standard of care in such cases, then it's a non-starter for malpractice.

I agree.

And a not unrelated point is how dependent PATIENTS are on tests--not infrequently patients are the ones requesting certain procedures or tests. This is another reason for inflated medical costs, and one in particular which I think serves as a real obstacle for a public health care system. The customer is always right, after all.

But that's for another SO thread, I digress.

[Frozen Sooner]

I am sure that anecdotally there are cases of this. I'm not sure if the cost-benefit of this is favorable.

Returning to this: the test for breach under professional liability (of which med mal is a subset) is specifically NOT cost-benefit analysis. Most of the time this works in the doctor's favor-you're not expected to abide by Judge Hand's formulation of the reasonable man, you're expected to abide by professional standard. In this case, it appears that instead of the race to the bottom you normally get when custom sets the standard of care, you're getting a race to the top.

Above I referenced Judge Posner's ideas about when custom should set the standard of care: when customers are the only ones injured by the tortfeasor's lack of care, the tortfeasor can roll over the cost of the increased custom. Customers will pay for efficient customs. Then again, in this case, the customer doesn't bear all of the costs of the custom: they roll the costs off on a third party by contract.

Weird.

[OKC-SLC]

Returning to this: the test for breach under professional liability (of which med mal is a subset) is specifically NOT cost-benefit analysis. Most of the time this works in the doctor's favor-you're not expected to abide by Judge Hand's formulation of the reasonable man, you're expected to abide by professional standard. In this case, it appears that instead of the race to the bottom you normally get when custom sets the standard of care, you're getting a race to the top.

Above I referenced Judge Posner's ideas about when custom should set the standard of care: when customers are the only ones injured by the tortfeasor's lack of care, the tortfeasor can roll over the cost of the increased custom. Customers will pay for efficient customs. Then again, in this case, the customer doesn't bear all of the costs of the custom: they roll the costs off on a third party by contract.

Weird.
Your legal jargon and mastery of the English language frightens and confuses me. Sometimes the honking horns of your traffic make me want to get out of my BMW and run off into the hills, or wherever...

[OKC-SLC]

Returning to this: the test for breach under professional liability (of which med mal is a subset) is specifically NOT cost-benefit analysis...
Fair enough. But in the context of trying to establish ways to reduce health care costs (some, including I, would argue that tort reform is one way), cost-benefit analysis is everything.

Besides, ordering every test imaginable for every patient's every potential disease is not artful. It is very bad clinical practice, it wastes not only money but the patient's time, and it is what separates physicians from computers.

[Frozen Sooner]

Fair enough. But in the context of trying to establish ways to reduce health care costs (some, including I, would argue that tort reform is one way), cost-benefit analysis is everything.

Besides, ordering every test imaginable for every patient's every potential disease is not artful. It is very bad clinical practice, it waste's not only money but the patient's time, and it is what separates physicians from computers.

I agree. There's a market failure here caused by the externality of insurance coverage. I just can't think of a way to reinternalize the costs without getting rid of insurance. Capping pain and suffering damages won't do it (not arguing that they wouldn't reduce costs, etc. saying that they won't curb defensive medicine as a rule.)

[StoopTroup]

We should just send PBHO this link.