A serious question about the "tort reform" meme

Whenever I see online discussions of health care, some right winger always says that there can be no reduction in costs without tort reform, because doctors are required to pay such high malpractice premiums.

I know that the last part is true. Malpractice premiums make health insurance premiums look like peanuts. But why?

Now I've seen several people counter the "tort reform" meme by saying that lawsuits account for less than one percent of medical costs, but I don't know what source they are using.

HOWEVER, one question I've NEVER seen asked is why malpractice insurance is so expensive.

Most of us understand that health insurance companies try to take in as much money as possible and pay out as little as possible.

What about insurance companies that offer malpractice insurance? Have they ever been required to open their books and document the need for high premiums? What do their CEOs make? How are their share prices doing? How much profit do they make between the 5-figure and 6-figure premiums they take in annually from nearly every doctor in the country and the unknown number of malpractice claims that they pay or settle in that same year.

I have never seen any figures or any discussion.

This is a job for some enterprising investigative reporter.

mean old doctor'.

Enough to justify asking nearly every doctor in the country for a tens of thousands or even hundreds of thousands of dollars per year?

Does anyone have any figures on the number of malpractice cases per year?

http://www.medicalmalpractice.com/National-Medical-Malpractice-Facts.cfm

12. Just 5.1 percent of doctors account for 54.2 percent of the malpractice payouts, according to data from the National Practitioner Data Bank. Of the 35,000 doctors who have had two or more malpractice payouts since 1990, only 7.6 percent of them have been disciplined. And only 13 percent of doctors with five medical malpractice payouts have been disciplined.

13. Between 44,000 and 98,000 people die in hospitals annually each year due to preventable medical errors, the Institute of Medicine found. A survey of doctors and other adults released in December in the New England Journal of Medicine found that more than a third of the doctors said they or their family members had experienced medical errors, most leading to serious health consequences. The cost to society in terms of disability and health care costs, lost income, lost household production and the personal costs of care are estimated to be between $17 billion and $29 billion. In contrast, the medical liability system costs $6.7 billion annually, about what is spent on dog food each year.

14. There is no growth in the number of new medical malpractice claims. According to the National Association of Insurance Commissioners, the number of new medical malpractice claims declined by about four percent between 1995 and 2000. There were 90,212 claims filed in 1995; 84,741 in 1996; 85,613 in 1997; 86,211 in 1998; 89,311 in 1999; and 86,480 in 2000.
While medical costs have increased by 113 percent since 1987, the amount spent on medical malpractice insurance has increased by just 52 percent over that time.
Insurance companies are raising rates because of poor returns on their investments, not because of increased litigation or jury awards, according to J. Robert Hunter, director of insurance for the Consumer Federation of America. Recent premiums were artificially low.

Malpractice insurance costs amount to only 3.2 percent of the average physician’s revenues.
Few medical errors ever result in legal claims. Only one malpractice claim is made for every 7.6 hospital injuries, according to a Harvard study. Further, plaintiffs drop 10 times more claims than they pursue, according to Physician Insurer Association of America data.

"A survey of doctors and other adults released in December in the New England Journal of Medicine found that more than a third of the doctors said they or their family members had experienced medical errors, most leading to serious health consequences."

WOW!

And why does misdiagnosis happen? It's a corollary of our system, which makes optimizing profit the main objective. That means patients get run through too fast. They aren't listened to as thoroughly as they should be. They don't get tests they really need. Why? Because time is money and most patients don't have a lot of money.

Every headliner type of case I've seen, after digging down into the specifics, there are quite good reasons for the awards.

are the problem.

Maybe its the ones that aren't all that exceptional?

EVERY headliner lawsuit you've ever read leads you to believe there are "quite good reasons for the award"?

:shrug:

and trust me, those insurance companies always appeal.

That's the part nobody ever hears about, the reduction of the judgment on appeal.

The whole "tort reform" argument is bogus and only seeks to deprive Americans of the right to sue, one of the rights outlined in the Constitution.

The main people they want to protect aren't doctors, but "corporate persons."

threatening lawsuits?

How many people DON'T fight frivolous lawsuits of all kinds because of the cost and time that is required. There is an abuse of the system going on (imo) and not simply in terms of medical malpractice.

Bad stuff happens. We aren't all entitled to monetary rewards as a result of what life brings. The abuse of the system makes those very legitimate incidents of MAL-practice much less note-worthy or damning. Negligence, recklessness, or knowingly doing harm SHOULD be punished, and compensation should be sought. But like everything, we seem to have gone over the edge on this, and people are capitalizing on the suffering of others.

The notion that any limits on lawsuits is unacceptable, is as foolish to me as the idea that any limits on guns is unacceptable.

:shrug:

and the frivolous ones are tossed out immediately unless the insurance company pays a "go away" settlement. In that case, the insurance company is at fault for encouraging a crooked lawyer. The system is not at fault.

i believe the system IS at fault.

And outrageous monetary awards for life's catastrophes is part of the reason we are in the mess we're in. imo.

The fact that the system tosses out some suits is evidence that abuse is going on. The backlog of court cases and the fact that simply threatening to sue can intimidate people (or insurance co's - particularly the smaller less corporate ones) into paying money that has no business being paid is also evidence that reform is needed. imo.

but we're both entitled to our perspectives eh?

:hi:

Those outrageous awards just don't stand. They make headlines but the appeals process rarely does unless it's a high profile case like the McDonald's coffee case.

The system works.

The flaw is the insurance company that settles out of court to make it go away when the lawsuit clearly has no merit.

I'm always amazed by the people who are so eager to give up their rights.

that i don't agree with you doesn't make me wrong-

I don't believe we have the 'right' to expect others to perform perfectly- or to work miracles, and when they fail, to punish them monetarily.

Every time something bad happens, we look for someone to blame- someone to "make pay". That mentality is ok, when there is actually intentional harm- (or malicious neglect)- but we've gone way, way beyond that point imo.

which is no less valid than yours even if it is a minority one.

:hi:

Either malpractice or professional negligence is required as well as actual, physical injury arising from it.

If the standard of care has been adhered to, there is no case. If there is no real injury, there is no case.

People sue because their feelings were hurt or sometimes when they ended up with a known complication from a procedure. These suits are baseless and these are the ones that the insurance company tries to settle out of court to make them go away, even though they'd be thrown out the first day.

Again, the insurance companies are at fault for encouraging frivolous suits by offering settlements.

The system, however, works. It just has to be accessed.

what is considered to be an "honest mistake".

Because there are cases won on what are clearly honest mistakes, with no malicious intent- and there ARE bad outcomes in some procedures which "usually" go well. It's the illusion that money will make that reality no longer exist is what motivates awards for medical malpractice.

The system needs policing imo, just as all systems do.

peace~

Insurance companies circumvent it when they settle frivolous lawsuits out of court.

Are you getting it yet?

And the bulk of the monetary award is to pay for past and future medical care of the patient injured by their malpractice.


Every malpractice case requires doctors who are experts who testify that the accused doctor did, indeed, commit malpractice, and that his or her malpractice caused the injury to the patient.

In it the insurer admitted the malpractice crisis was essentially nonexistant.

and if it were found that malpractice insurance companies were gouging, doctors everywhere would sit up and take notice.

costs even though their lawsuit experience was low. The reason? Because the clients could pay it.
I believe it was the same study.

which may not really be necessiary, or what a physician would chose to do otherwise, be done- as a result.

THAT does run up the cost of healthcare overall.

I think there is merit in limiting lawsuits of all kinds. Life isn't fair, and terrible things happen to people. There is a line between reckless and malicious intent (or neglect), and ..fate... and that line seems to be terribly blurred in our society. imo-

I know this isn't a popular Dem. postion, but it's where i stand.

:hi:

Are there enough expensive lawsuits to justify the PREMIUMS that doctors pay?

Or is a lot of the money going to executive bonuses, large shareholders' dividends, and fancy office buildings?

i didn't get that.

It seems pretty obvious that outrageous profits are being made on Malpractice Insurance- It's a catch 22 for physicians. If they don't carry insurance, they are sitting ducks-(or lack hospital privileges/affiliation) Insurance companies can charge whatever the market will bear- can't they? What would stop them from pushing the cost (and their profits) to the breaking point?

Which i guess brings this back around to is it the "lawsuits" and the need to "insure"? Kind of a symbiotic relationship in some ways. There are legitimate malpractice claims, but the abuse (imo) of the system has allowed the threat of frivolous ones (and all their attendent costs) to drive the market don't you think?

When Republicans were pushing tort reform in this state studies were released showing that malpractice insurance fees in the 1990s were a smaller factor in overall practice expenses than they had been in the 1960s.

Call me crazy.

1) Some (not all) jury awards are just insane off the charts and it only takes a couple of $10 mil payouts (maybe 1 per 10,000 doctors) to push malpractice premiums up for all docs in the pool.

2) Unnecessary tests. In an attempt to fight off baseless lawsuits many Docs (under requirements from insurance company) will order tests they believe are unnecessary simply because it can be used evidence in their defense. My doctor point blank told me the tests were not needed but he couldn't give me a diagnosis without it. I was having chest pain (kinda scary when you are still relatively young). My out of pocket cost wasn't too bad $80 but I notice on the insurance statement the total cost was nearly $600. $600 in tests the Doctor said were not needed. If he didn't do them and was audited he would lose his malpractice insurance or have to pay a much higher premium. So say 2 million patients had the same thing happen this year... thats a cool billion in wasted tests. Maybe it is more than that? Maybe it is 10 million or 20 million patients.

3) Emotion & Litigation are a bad combo.
Take OB/GYN who delivers babies. The sad reality is some babies will be lost durring delivery. So take a doc who delivers 1000 babies in his/her lifetime. Now 50 of them die, of those 50, 10 are questionable. Now half the families lash out with a lawsuit in their grief. Basically not matter how good the Doctor is he/she can pretty much be guaranteed 5 or so multi million dollar lawsuits in his/her lifetime. The insurance company has to accept that kind of risk and to do so they need to collect premiums to cover the almost guaranteed eventually payout.

that permeates this society.

You pay a far higher percentage of your income to health care than the doctor or hospital pays for malpractice insurance, as a percentage of their income. If you are like most Americans, somewhere between 10-20% of your after tax income goes to health care, health insurance, prescription drugs, and over the counter meds. Your doctor's malpractice insurance is far less a percentage of his revenues.

This particular meme used by the right is simply untrue. Malpractice claims have a very minimal impact on health care costs. One study which debunked this notion was done at the behest of the Texas Medical Association in the 1990s, and it was promptly buried when the results didn't comport with the meme used since the 1980s.

In many jurisdictions, and Texas particularly, there are more protections against lawsuits for doctors than for any other group. It's harder to sue doctors successfully than any other group. They have caps on their exposure to liability which drastically limit their exposure.

A handful of specialties produce most of the malpractice claims.

The bulk of damages (the amount a plaintiff can recover) in such cases are the MEDICAL CARE necessary for the plaintiff thereafter. In a plan where health care is guaranteed for all, the damages which are awardable to such a plaintiff would therefore be drastically reduced.

If the right wing really wants to reduce payouts to plaintiffs and tort lawyers, the way to do it is passing health care coverage for everyone. The main reason tort verdicts in bad malpractice cases run so high is the continuing medical costs of caring for and maintaining someone whose health has been terribly altered by a medical mistake.

Here's one source which directly addresses the "tort reform" fiction:

http://www.law.illinois.edu/faculty/misc/hyman_pdfs/Malpractice%20Suits%20Not%20Driving%20Insurance%203-10-05.pdf

OBGYN's rates aren't the same as ENT's are they?

Many of our hospitals in NH are closing their Maternity facilities because of the costs. The birth rate is down here, which seems to raise the number of malpractice suits.

:shrug:

There's a huge amount of denial about malpractice claims. Their cause is simple: malpractice.

A doctor's failure to diagnose properly at or near the time of birth can have catastrophic results, and those results - when the child lives - can mean a lifetime of round the clock care. THOSE are the cases which create such huge med malpractice cases.

If you want to do something about those premiums, and if the doctors want to do something about them, two things can be done. The first is diagnose better. Don't run patients through like cattle, giving them only tests they can afford. Give them tests they need. The second is make health care a right, not a privilege of those who can pay. That will eliminate most of the monetary damages asserted in a med malpractice case.

that Doctors are HUMAN BEINGS. That they aren't perfect, and that for the most part, they are trying to have the best outcome for everyone- most especially the patient.

I agree with you completely on the need for healthcare to be a RIGHT- and not a "privilege". I also believe that many people look upon those who provide health care differently than themselves. That they have an unrealistic expectation of perfection or the ability to bring about a positive outcome that is understandable, but not fair. I don't deny that there are health practitioners who are negligent, incompetent, and sometimes intentionally do harm. Medicine is both an art and a science. Life is not always predictable or fair.

My Grandfather was a rural family physician, who graduated from Albany Medical College in 1899 :o and practiced medicine until a few years before his death at 94 in the late 60's. He never believed in insurance, and while it would be difficult to believe he never made a 'mistake' caring for a patient, his first concern was always their health and well being. He was incredibly well respected and never refused to care for anyone regardless of their ability to pay, or their social standing. He raised 5 children successfully and died without any outstanding debts, but without any great monetary wealth. And, I don't think he was really all that different from other MD's then or now.

I question the expectations that 'we' have of those in the Medical field. They stand in the gap between life and death- sickness and health- and sometimes are held responsible for the unfairness that is part of life in this world.

fwiw.

:hi:

And I also agree that when a doctor nicks an artery and terribly injures a patient, it doesn't make the doctor a bad person. It only means that, like the driver who backs out over a child, he may not have been paying attention in the right direction when it happened.

I don't like the system of pursuing claims for med malpractice. It doesn't work well, and it's too harsh on all sides. But I do blame the insurance companies, the hospital corps, and the doctors' lobbying groups for making it into a holy war.

The torts system of recovery is propelled by the MEDICAL COSTS. Get rid of them as a personal obligation and you obliterate half or more of the damages a person can get from med mal cases.

3.2 < 11. :hi:

16% of America's money goes to health care, and the big bite is health insurance. As I noted, it runs from 10-20%, on average, of a family's income.

Even the typical American's CAR insurance premium as high a percentage of his income as malpractice insurance is a percentage of HIS or HER income. On average.

Malpractice insurance is expensive, but that's true everywhere.

Very little of what doctors pay in malpractice premiums goes to paying the victims of malpractice injuries. As such, closing the door on malpractice suits would likely not have much or any impact on premiums.

Moreover, the idea that it is easy for any person claiming malpractice to get money for their injuries is a flat out fiction. I can say this from personal experience in involvement with a malpractice lawsuit against a major hospital where the plaintiff had lost three fingers after bariatric surgery, and the hospital's nursing staff's continued failure to check up on the plaintiff's complaints about pain in his arm where IVs had been inserted. An hour after being released, the plaintiff suffered a severe and painful blood clot which ultimately lead to the amputation of three of his fingers. Yet in the end, the hospital won at trial, because it could pay more for experts to shift the blame to the plaintiff himself, whereas the plaintiff was rather limited in the resources to pay us.

malpractice insurance premiums are calculated on an actuarial basis, which means that the volatility of payouts has a significant impact on how you reach the actual "number" that ends up being the premium cost.

Essentially, you use the amount of prior awards to try to estimate what you will pay out in the future. For example, if there were 50 claims last year, and the highest was $100,000 and the lowest was $10,000, you'd have a pretty good idea of how to predict payouts in the future.

However, statistical outliers in these calculations have a dramatic effect on the end result. Let's say you have 500 payouts: the lowest payout was $5,000, the average payout was $25,000, but there are one or two payouts that are upwards of $10 million. Because those ultra-high payouts are so extreme, they affect the standard deviation and result in an astronomical increase in the premium you have to charge to cover future anticipated costs.

The same is true for calculating the value of stock options -- many of these values have been very overinflated in the past year or so because the stock market has been so volatile.

I'm a lawyer, and I can say that in my experience it's the legal profession that stands in the way of improving the system. By allowing unscrupulous lawyers to game the system and earn millions (if not billions) in contingency fees, the profession has let public opinion turn against plaintiff's lawyers, even the good ones. I know many plaintiff's attorneys who represent real, injured people who deserve to be compensated. These lawyers aren't out to make millions, they just want to ensure that their clients receive adequate justice. For example, if one of their clients is injured and must miss a month of work, they try to recover those lost wages, medical expenses, and MAYBE a very small amount of "pain and suffering" damages. However, they risk losing business to the ambulance-chaser who will promise the client a $500,000 or $1,000,000 settlement, even though those damages far exceed what was actually suffered. At the extreme end, you have the big-time plaintiff's lawyers that have been caught forging doctor report and X-rays, finding plaintiffs that were never injured, etc. In my view, the legal profession (which is largely self-regulating) needs to do a much better job in reining in these unscrupulous attorneys. Not only will it make the profession better, but it will allow truly injured clients to get the justice they deserve.

It is the few ultra high awards that skew all the data. Someone has to pay that $18 million claim. The insurance company pays it and then adjust rates higher to reflect the increased risk.

Even worse is if their math put highest likely award at say $10 mil then a claim of $18 mil gets awarded. All the premiums they have been collecting don't cover the award. So not only do they raise premiums for future potential claims of up to $18 mil they also raise premiums to collect against the under-premiums charged in the past. That double whammy is what is killing OB/GYN. All it takes it a couple of "super awards" to cause their premiums to skyrocket past economically viable. Many change to another form of medicine because they can make more with less risk by getting out of that high risk field.

thanks for sharing your personal perspective. Your words about the need for self-regulation are encouraging.
imo
:hi:

I've defended malpractice cases for insurance companies and their clients. There's a saying lawyers who defend doctors have:

"Doctors get sued for malpractice because they commit malpractice."



When I was defending med mal cases, I found these truths:

1. Insurance companies routinely hide evidence, cover up doctor malpractice, and fail to settle reasonably cases where there is clear liability.

2. It is the rare plaintiff in a malpractice case who gets any money they don't have coming.

3. Doctors and their personnel cover for each other like cops do, and by that, I mean lying, making false entries in medical logs, getting rid of evidence, and such.

4. The entire system of dealing with claims by patients is set up to take care of the insurer and the doctors, not the patients, all the way through the judicial system.

"The available evidence suggests that premiums have risen both because insurance companies have faced increased costs to pay claims (from growth in malpractice awards) and because of reduced income from their investments and short-term factors in the insurance market. Some observers fear that rising malpractice premiums will cause physicians to stop practicing medicine, thus reducing the availability of health care in some parts of the country..."

http://www.cbo.gov/doc.cfm?index=4968&type=0

That "report" is a GOP propaganda piece. That report is from 2004, and came from a CBO thoroughly controlled by the GOP.

The available evidence suggests that malpractice premiums remain high because (1) insurance companies have investment losses to make up, and (2) most of the premiums pay the admin costs of the programs, and do not pay claims.

As noted above, a relatively small number of doctors account for the majority of cases and awards, but they are rarely diciplined effectively.

The other part: pure and simple gouging:
http://www.citizen.org/documents/AngoffReport.pdf

This Report analyzes the 2000-2004 performance of each of the 15 largest medical malpractice
insurers in the United States rated by A.M. Best, the principal rating service for the insurance industry.
The Report is based primarily on data from the carriers’ 2004 Annual Statements filed with state
insurance departments.
The Report finds the following:
* Over the last five years the amount the major medical malpractice insurers have collected in
premiums has more than doubled, while their claims payouts have remained essentially flat.
* Some malpractice insurers substantially increased their premiums while both their claims
payments and their projected future claims payments were decreasing.
* Malpractice insurers accumulated record amounts of surplus over the last three years.
Taken together, the malpractice carriers analyzed increased their net premiums by 120.2% during
the period 2000-2004, although their net claims payments rose by only 5.7%. Thus, they increased their
premiums by 21 times (120.2/5.7 = 21.09) the increase in their claims payments.
As a result of these two dramatically different trends, the ratio between these insurers’ claims
payments and premiums fell by more than half between 2000 and 2004: it declined from 69.9% to
33.6% on a net basis, and from 68.8% to 32.1% on a gross basis. Put another way, in 2004 the leading
medical malpractice insurers took in approximately three times as much in premiums as they paid out in
claims.
Moreover, several insurers substantially increased their premiums even though their claims
payments actually fell--and fell substantially.
------------Full PDF doc at link.-----------------

Particularly the last sentence:

"Moreover, several insurers substantially increased their premiums even though their claims
payments actually fell--and fell substantially."

It's impossible to win a malpractice case unless there is compelling evidence by other doctors who are experts in the relevant fields against the doctor accused of malpractice.

Sure, some good doctors do get sued for malpractice wrongly, but winning a malpractice case against a doctor is harder than against any other defendant in America.

No, but you can certainly settle a malpractice case against a doctor who has done nothing wrong. Insurers are notorious for settling claims just to get the lawyers off their backs, much to the chagrin of doctors, who want to take the plaintiff to court because they know they have done nothing wrong.

Everything you've posted in this thread is straight out of the Insurance industry/medical industry handbook for attacking the process of making doctors pay for their mistakes.

Unlike you, I've been hired by med mal insurers to defende these cases, and unlike you, I've seen the practices. They don't pay unmeritorious claims. The pay claims they think they will lose, and the evidence is why they'll lose.

You have a fairy tale view of how the claims and litigation process works.

I amended my response to make clear I was not disagreeing with your post.

:toast:

simply because they don't want to take the chance of going to trial, and losing before a jury, or bear the expense of going to trial? The doctor has no say in that matter, do they?

(I was an insurance adjuster in a previous lifetime)

I've settled many, many insurance cases over the years. I've been trial counsel for the insured, coverage counsel for the insurance company, or counsel to excess insurance. One can only fill one of those roles in any case. I've fulfilled the role in a variety of cases, many of the professional errors and omission cases.

A case is settled based upon the case development. If it's a case that can be lost, and the attendant damages would be high, it usually gets settled. That's simply playing the smart odds. Overall, it works out. Settling does save costs of defense, which otherwise would increase premiums further.

BTW, I've sued adjusters and their insurance companies before on bad faith settlement practices, as well as defend them. And I've represented one insurer suing another insurer for failing to settle a case within the primary carrier's policy limits.

And let's not forget that an insurer for the plaintiff often has a lien on proceeds recovered which relate to the payouts by the plaintiff's insurer. That money passes from one insurer to another, even though it's part of the plaintiff's recovery of damages.

payouts are essentially static. The insurance company makes its real money not from the premiums but from investing those premiums in the market. When the markets go down, premiums go up. The ABA actually has a lot of documentation available that establishes this link pretty clearly.

that racks up the total cost of health care

not taking sides here
but an interesting letter from a physicial to the ny times months ago...lamented how this child fell off his bike and clearly had a very mild bruise on the head...but the ER doctor ordered several additional tests, including CAT scans, etc. Maybe not the greatest example, but the point was that doctors are compelled to order lots of expensive tests out of fear of subsequently being sued

Suppose you go to get a minor operation on your gall bladder. It's not serious, and there's no reason to believe everything won't be fine.

You wake up from surgery. Your family is around you, and they look very, very sad. Your wife is trembling, and cannot keep her composure. Someone speaks.

"Something terrible happened while you were under. A doctor accidently nicked an artery, cutting off blood flow to your legs. By the time we got it repaired, your legs were irreparably harmed. We had to amputate your legs."

This is when you realize your life as you knew it is over.


How much would you take for that experience? How much money to you is too much?

Does $18 million for the next 40 years of your life as a double amputee sound like a good deal for $18 million? Or would you rather have your legs back?

She and my dad were in a car that was hit head-on (fortunately at slow, in-town speeds rather than highway speeds) by a carful of teens who had been drinking and turned the wrong way coming out of a parking lot.

My parents were hospitalized for five weeks, and my mother wore a body brace for six months after that.

The other side's lawyer tried to use the argument that my parents were being unreasonable for asking for compensation beyond hospital bills.

My mom's answer was, "How much would someone have to pay you before you'd volunteer to be in a head-on collision and suffer injuries like ours?"

It's much, much easier to represent defendants. They have all the money. They have the hold over the legislature. They have sway with the judges. They play a game that is stacked in their favor all the way through.

It is the rare plaintiff in a personal injury or med mal case who gets a financial recovery that truly compensates for the loss. I've never known a single plaintiff in all my years that got a recovery I would have taken, if it meant going through what they went through. And that's true whether I was for them or against in the case.

held to a level of perfection that is impossible?

"accidentally nicked an artery"- If the Doctor could have chosen to nick that artery who in their fuckin right mind would chose to have that outcome????

There are NO GUARANTEES in life- no, there is ONE - that every single one of us will die someday. and no amount of money will change that reality, or make up for it to those left behind.

Your very first sentences contain the answer to your question. And point out the error that is being made constantly in this society.

"Suppose you go to get a minor operation on your gall bladder. It's not serious, and there's no reason to believe everything won't be fine. "

There is NO such thing as a "minor" operation on your gall bladder. And yes, there IS reason to understand, (believe it or not) that everything won't be fine- That is REALITY. That is LIFE ON EARTH. We are human beings, we are imperfect, fragile, and sometimes - no matter how much we HATE it, bad things happen to us. We'll blame the Dr. the hospital, the person who turned away at just the wrong time while driving, the Power lines that we lived next to, the floor that was too slippery, the __________- but the FACT is that we do not, and likely never will have complete control over everything that happens.

Hell yeah, money makes it easier- hell yeah, the more money the better- and hell yeah undoing the damage would be ideal- but this is life, not some make believe world.

Take it back to the beginning- what brought you to the operation? Something was WRONG with your gall bladder. The people you brought your body to were trying to help you avoid death or suffering as a result of the way your body was NOT working. They did their best, and it went terribly wrong. So, lets punish them? If this was intentional- or as a result of blatant negligence I'd agree- but a nicked artery and the fact that it was not able to be repaired without having done damage is not something ANY decent Surgeon would desire, or try not to avoid.


(Your entire question hit very close to home for me, as my Dad died an agonizing death from necrotizing pancretitis as the result of a gall bladder issue- something that could have made our family much $ given your scenario- but which wouldn't have brought him back, and which would only have continued to reinforce our societies self defeating notion that money is the answer to everything- )

i apologize for my rage.
maybe i need a DU time-out.

The doctor is liable because he cut the artery, and cutting the artery is deemed negligence BY HIS PEERS. A competent and convincing doctor who is an expert has to testify that the doctor was negligent, and that his negligence led to the injury. Which part of that do you not understand?

You want to rationalize away that negligence. You think "shit happens," and that's a basis for not assigning liability.

can rationalize my statement about unrealistic expectations from health professionals as much as you like-
As to whether I can "fairly" discuss this topic, who the fuck are you to judge?

why waste your time replying with such arrogant sarcasm ? does it make you feel better now?

My Grandfather was a good man, who left this world a little better than it was when he came into it.
He didn't seek to profit as a result of others suffering.
Not everyone can have that said about them.



:hi:

You repeat right wing memes that have been floated for the past 30 years by the GOP and its core supporters in the health care and health insurance industries.

I've represented both sides of the malpractice debate, as well as their insurers. My conclusions are based upon that inside access to the process, and the knowledge gained from it.

of self interest as well.

Which makes your "meme" as valid as any right wing meme you may want to stick on me.

I have nothing to gain by having tort reform enacted- you however have much to lose-

Which makes your position somewhat biased, and no more valuable than mine, despite what you claim to be my 'ignorance'-

:hi:

I haven't worked any side of the insurance/malpractice/patient docket in almost 15 years, but my experience in it allows me to see the horrors of all sides of the topic. I have no dog in that fight. One reason I don't do any work in that area any more is because it's such an unhappy work to do, no matter which side one is on. Tragic cases are hard to see, and if you'd seen more of them, you wouldn't so quickly write them off as whiners and complainers who want something for nothing.

I have suggested changing the system dramatically: make health care not based upon ability to pay, and you save the insurers, the doctors, and the patients who get injured a ton of money. Why? Because they no longer absorb the medical costs of accidents during care.

You want to deny those who are grievously injured the ability to recover for their economic losses, and that's heinous. Eliminating health care costs for such claims by providing national health care would more than cut malpractice claims in half.

writing anyone off as a whiner-

and in my perfect little universe no one would ever suffer or lack- You believe that if someone has suffered from a bad life experience, there should be someone held accountable, and the person who's life has been irrevocably altered should receive all the potential funds they might have been able to accrue as a reward, or in response to that incident.

Where is this money coming from? Who can honestly say that the individual injured or killed would have not died from other causes or might not have hit the lottery and made far more than any award?

The way the system is set up there is a need- a vital interest into looking for someone to blame for every single bad thing that happens in life. The need to seek out someone to be held responsible for what we don't want to accept as part of the risk of waking up to another day. That is where we will likely never be able to agree with each other.

I'm not in any way denying that there are cases of legitimate malpractice- maybe i haven't said that clearly enough, but i honestly question, and ask us as a society to question why we have to make "someone" into the fall guy. Why we have to place blame, in order to help someone else, rather than just responding to the need?

I don't want to deny anyone "grievously injured the ability to recover for their economic losses"- I don't want to deny anyone access to any health care that they need, due to accident, illness or disability- regardless of whether anyone can be found to be blamed for their condition or not- but i'm in the vast minority on this view.(and about as far from 'right wing' as you can get which made your accusation all the more offensive to me).

People who lost loved ones as a result of the events of 9/11 received compensation that many who have lost loved ones to less publicized, but no less terrible, or devastating incidents never receive. Shouldn't we respond to all situations where people are taken from us before their time, or so unfairly in the same way?

Why do we have to find some "one" to place blame on in order to recognize that when someone's life is altered or cut short, that there is likely to be a need for care and financial help for the victims and/or their families?

Most MD's see death and illness as the enemy- why should their legitimate efforts to do good need to be turned against them so that those who are in need are cared for?

your words hit their target- if you regret them, that's ok- but lets not pretend they never existed.

:shrug:

If it is really killing them so much (which it isn't).

It hasn't lowered malpractice insurance rates.

Rather, what it has done is deny victims the compensation they need to not only pursue their case but the professional care they'll need for the rest of their lives.

Punitive damages aren't to reward the person who suffered the loss. Punitive means to punish. If you can't punish a big corporation for selling a defective product they're going to keep on selling it and killing people figuring any loss at trial is just the cost of doing business. If they're going to get hit with a big jury reward, they're going to be a lot more careful in what kind of products they sell. (I realize this last bit isn't about medicine, but it is about tort "reform".)

About 50% since tort reform passed in the early 2000s.

With respect to punitive damages, I completely agree that those damages are meant to punish, not reward the plaintiff or his lawyers. The problem I have is that the jury system is so unpredictable with respect to these awards, and leads to the cases of "jackpot justice" that you hear so much about. Up to 40% of those damages to to the attorney, who's busy ordering his next yacht or private jet.

I'm a big believer in punitive damages, but I've always argued that they shouldn't go to the plaintiff or his lawyer-- they should go to foundations and nonprofits that help all people hurt by negligent doctors, corporations, etc. For example, a defective drug that causes heart disease? Punitive damages go to the American Heart Association.

excellent in my opinion.
One that benefits those who are most affected.

But I wonder what the effect would be on the motivation or willingness of Attorneys to take on the cases?

:hi:

You write like a lobbyist for the health insurance industry. The very term you use - "tort reform" - is a misnomer. It is protections for a segment of the population to protect them from having to pay for damages they inflict on others through negligence.

Here's column in the Washington Independent from yesterday, August 19, 2009, which entirely debunks your insurance industry propaganda:

http://washingtonindependent.com/55535/tort-reform-unlikely-to-cut-health-care-costs

Tort Reform Unlikely to Cut Health Care Costs
Studies Show Malpractice Awards Are Not Big Driver of Skyrocketing Costs

So far Republicans have mostly focused on tearing apart any reform with a role for the federal government, portraying it as the government dictating how long old people get to live. But an undercurrent of those complaints is the insistence of doctors, hospitals, insurance companies and ideological conservatives that medical malpractice claims are out of control and a leading cause of rising health care costs.

The health economists and independent legal experts who study the issue, however, don’t believe that’s true. They say that malpractice liability costs are a small fraction of the spiraling costs of the U.S. health care system, and that the medical errors that malpractice liability tries to prevent are themselves a huge cost– both to the injured patients and to the health care system as a whole.

“It’s really just a distraction,” said Tom Baker, a professor at the University of Pennsylvania Law School and author of “The Medical Malpractice Myth.” “If you were to eliminate medical malpractice liability, even forgetting the negative consequences that would have for safety, accountability, and responsiveness, maybe we’d be talking about 1.5 percent of health care costs. So we’re not talking about real money. It’s small relative to the out-of-control cost of health care.”

Annual jury awards and legal settlements involving doctors amounts to “a drop in the bucket” in a country that spends $2.3 trillion annually on health care, Amitabh Chandra, another Harvard University economist, recently told Bloomberg News. Chandra estimated the cost of jury awards at about $12 per person in the U.S., or about $3.6 billion. Insurer WellPoint Inc. has also said that liability awards are not what’s driving premiums. And a 2004 report by the Congressional Budget Office said medical malpractice makes up only 2 percent of U.S. health spending. Even “significant reductions” would do little to curb health-care expenses, it concluded.