Friday, February 12, 2010

Gingrich & Goodman Idea #8: "Eliminate Junk Lawsuits"


One of the interesting aspects of healthcare reform has been how quiet the insurance industry has been. When you hear people like Newt Gingrich talk, you would think that "tort reform" was perhaps the most pressing issue that must be addressed as part of a reform package. But instead the insurance companies appear happy with the status quo.

If you think about it, the insurance industry has good cause to be happy with the status quo. Despite their squawking about evil "trial lawyers," they have achieved their "tort reform" goals in pretty much every state. They have consistently focused on four goals: limit damages awards, so that the most severely injured individuals recover get little compensation for their pain and suffering; abolish "joint and several damages" and implement the "empty chair defense" to force plaintiff's lawyers to sue every conceivable defendant and drive up the costs of litigation; require notice periods and "certificates of merit" before a lawsuit can be commenced so as to prolong and again drive up the cost of litigation; and shorten statutes of limitations and implement statutes of repose, such that patients have a narrow window of time to make their claims before they're permanently barred from doing so, regardless of a claim's merit.

I read an article recently by a doctor who was sued as part of a malpractice case and who was ultimately dropped from the suit. She asked her defense lawyer "Why was I sued" and the defense lawyer lied, "I don't know." The defense lawyer does know. If you have a system of "joint and several liability", you can sue those you believe are most responsible. If a defendant believes others are in fact responsible, or are more responsible, the defendant can bring those others into the case. Insurance companies have worked very hard to abolish joint and several liability and to create the "empty chair defense" - so that a defendant can point to the "empty chair" where that defendant "should be sitting" and argue at trial that the plaintiff didn't sue the actual culprit, and that the actual culprit is responsible for most or all of the damages. That defense may amount to lies and innuendo, but courtroom arguments won't support a defamation case and the goal is to win, right? So to avoid that outcome the plaintiff now brings every conceivable defendant at the start of the litigation. This pro-insurance industry reform increases the cost and burden of litigation, and measurably harms the health professionals (and others - this isn't limited to malpractice) who are brought into claims to avoid the "empty chair defense". Plaintiff's lawyers would be happy to go back to joint and several liability with the onus on the defendant to bring in a supposedly culpable third party, and that should work out quite well for doctors, but the insurance industry is not going to give up this "reform".

Of the four leading "reforms", arguably the "certificate of merit" should help avoid "junk lawsuits" but in reality malpractice lawyers work hard not to file meritorious claims. Even without that requirement, due to the high cost of litigation, malpractice lawyers pay medical professionals to help them screen their cases - they don't want to waste their time and money on cases they cannot win. The dubious claims get filed because lawyers lack the information necessary to fully assess the merits of the claim without discovery - without forcing that information out of the defendants and their insurance companies. The certificate of merit prepared for such a case is prepared by a doctor who is similarly forced to make assumptions about what happened. So in practice it's a great way to generate revenue for doctors who prepare certificates of merit, drive up the cost of litigation and drag out the settlement process, but does little to ensure that a case is meritorious.

Some realities of medical malpractice litigation:
  • Most malpractice cases are correctly decided.

  • Those in which are arguably wrongly decided in favor of the plaintiff have smaller-than-average recoveries, and claims without merit are "generally resolved appropriately".

  • About one in six malpractice cases are wrongly decided in favor of the doctor.
Further,
the malpractice system performs reasonably well in its function of separating claims without merit from those with merit and compensating the latter. In a sense, our findings lend support to this view: three quarters of the litigation outcomes were concordant with the merits of the claim.
And, when "non-error claims" were made, it was not for a lack of diligence by the plaintiff's lawyers:
The profile of non-error claims we observed does not square with the notion of opportunistic trial lawyers pursuing questionable lawsuits in circumstances in which their chances of winning are reasonable and prospective returns in the event of a win are high. Rather, our findings underscore how difficult it may be for plaintiffs and their attorneys to discern what has happened before the initiation of a claim and the acquisition of knowledge that comes from the investigations, consultation with experts, and sharing of information that litigation triggers.
The most serious problem identified?
Although the number of claims without merit that resulted in compensation was fairly small, the converse form of inaccuracy — claims associated with error and injury that did not result in compensation — was substantially more common. One in six claims involved errors and received no payment. The plaintiffs behind such unrequited claims must shoulder the substantial economic and noneconomic burdens that flow from preventable injury. Moreover, failure to pay claims involving error adds to a larger phenomenon of underpayment generated by the vast number of negligent injuries that never surface as claims.
That's right - not enough people injured by malpractice receive fair compensation for their injuries. All of that information coming from the New England Journal of Medicine.

One of the criticisms of the malpractice system is that too much of the money that goes into the system goes to the cost of litigation, with too little ending up in the pockets of an injured plaintiff. It's a fair criticism. It's also fair to recognize that delay and increased cost are a defense lawyer's friend, and the plaintiff's lawyer's enemy. A dream case for the plaintiff's lawyer would involve calling the defendant's insurance adjuster, negotiating a fair settlement, executing the settlement agreement, and getting a check at the earliest possible date. It almost never happens. Instead, even when liability is blindingly obvious, insurance companies want to make plaintiff's lawyers work for the money, and benefit from prolonging litigation during which time a severely injured plaintiff may decide that they would rather take a small settlement now than have to wait additional months or years to be more fully compensated. Returning to the New England Journal of Medicine:
Frivolous litigation is in the bull's-eye of the current tort-reform efforts of state and federal legislators. The need to constrain the number and costs of frivolous lawsuits is touted as one of the primary justifications for such popular reforms as limits on attorneys' fees, caps on damages, panels for screening claims, and expert precertification requirements. Our findings suggest that moves to curb frivolous litigation, if successful, will have a relatively limited effect on the caseload and costs of litigation. The vast majority of resources go toward resolving and paying claims that involve errors. A higher-value target for reform than discouraging claims that do not belong in the system would be streamlining the processing of claims that do belong.
Plaintiff's lawyers would get on board with that. Why won't Newt Gingrich's clients in the insurance industry?

Frankly, "tort reform" is a subject that a few poeple find interesting, but makes most people's eyes glaze over. That's why the insurance industry and its shills use misleading sound bites "junk lawsuits", "lawsuit lottery", etc., to mischaracterize the facts. (Why don't "tort reform" advocates ever show us the paraplegic in a wheelchair, or the severely brain injured child, who "won" this "lawsuit lottery"?) When there's real scholarship available from credible sources, such as the NEJM article quoted above, it's disgraceful that the mainstream media gives unquestioning coverage to the insurance company spin than they do to the facts, but... that's pretty typical of mainstream media coverage of contentious or scientific issues.

Speaking of shills....

The Newt Gingrich, John C. Goodman editorial is subtitled, "We don't need to study lawsuit reform for one minute longer", so I guess they've read the NEJM article and... yeah, right. They don't want to study lawsuit reform for one minute longer lest some facts enter the debate. It's enough to declare that "The current system is broken" then demand "reforms" that will ensure that even fewer victims of medical malpractice receive any compensation, and fewer of the rest receive fair compensation. And of all states to hold up as an example, Texas - a state that went farther than any other to kowtow to the insurance industry to the significant detriment of victims of malpractice. Tort reform was sold on lines like this: "52 counties in Texas now have no obstetrician. Wide swaths of Texas have no neurosurgeon or orthopedic surgeon". Four years after "tort reform", the number of counties without obstetricians is unchanged--152 counties still have none, according to the Observer's examination of county-by-county data at the state Medical Board... Nearly half of Texas counties--124, or 49 percent--have no obstetrician, neurosurgeon, or orthopedic surgeon. Those specialists aside, 21 Texas counties have no physician of any kind." Let's not forget the New Yorker article, in which a doctor turns a spotlight on high medical costs in Texas:
Some were dubious when I told them that McAllen was the country’s most expensive place for health care. I gave them the spending data from Medicare. In 1992, in the McAllen market, the average cost per Medicare enrollee was $4,891, almost exactly the national average. But since then, year after year, McAllen’s health costs have grown faster than any other market in the country, ultimately soaring by more than ten thousand dollars per person.

“Maybe the service is better here,” the cardiologist suggested. People can be seen faster and get their tests more readily, he said.

Others were skeptical. “I don’t think that explains the costs he’s talking about,” the general surgeon said.

“It’s malpractice,” a family physician who had practiced here for thirty-three years said.

“McAllen is legal hell,” the cardiologist agreed. Doctors order unnecessary tests just to protect themselves, he said. Everyone thought the lawyers here were worse than elsewhere.

That explanation puzzled me. Several years ago, Texas passed a tough malpractice law that capped pain-and-suffering awards at two hundred and fifty thousand dollars. Didn’t lawsuits go down?

“Practically to zero,” the cardiologist admitted.

“Come on,” the general surgeon finally said. “We all know these arguments are bullshit. There is overutilization here, pure and simple.” Doctors, he said, were racking up charges with extra tests, services, and procedures.
So Texas-sized "tort reform" left it with one of the highest cost, most wasteful healthcare markets in the nation. And when confronted with that fact doctors still try to blame "malpractice litigation" even though virtually no malpractice suits are filed.
In 2006, Medicare spent fifteen thousand dollars per enrollee here, almost twice the national average. The income per capita is twelve thousand dollars. In other words, Medicare spends three thousand dollars more per person here than the average person earns.
It must make Newt Gingrich very proud.

All of that said, let me briefly touch on the reasons why I don't think that the insurance companies are eager for the federal government to impose Texas-style "tort reform" upon the nation, and are instead appear largely content with the softer reform measures that exist in both the House and Senate bills. It's not that they're trying to silence their shills, but even Gingrich put "malpractice reform" eighth on his list of "ideas". If you impose a national cap on damages, it's likely to be higher than many state caps - many such caps were imposed decades ago and have not since been raised - and to be indexed to inflation.

Further, it's easier to target Congress with a litany of cases in which a cap brought about an unjust result, both because you're targeting one legislative body instead of fifty and because you're better able to get media attention, potentially having the cap raised in subsequent years. It's hard to make a "conservative" case for a federally imposed statute of limitations for malpractice cases, and you suffer the same consequence - it is easy to find examples of people, particularly people injured as minors, whose claims were cut off by a statute of limitations before they realized the severity or cause of their injury, or before they were legally competent to pursue the claim. A national statute of limitations could significantly expand the number of people able to bring claims currently time-barred under state law. Imposing an abolition of joint and several liability would be hard to disguise as anything but an intrusion on states rights. Further, all of these restrictions would be subject to appeal to the U.S. Supreme Court which, although largely pro-industry, might nonetheless have a difficult time finding a constitutional basis for supporting the federalization of a single type of tort, or reading the 7th Amendment out of the Constitution.

You would also think that a "conservative" like Newt Gingrich would want to empower states - any of which can, right now, emulate Texas - to enjoy the right to fashion their own remedies consistent with their own views of public policy. Surely he's heard of this thing called "federalism"? Instead, as with insurance regulation, he'll apparently support anything his industry sponsors want even if it undermines federalism. Of course, that's no surprise if you look at his track record.

(Return to Parent Article.)

30 comments:

  1. Wow, quite a screed. If the system is working so well, then why is nearly every physician in the country - including yours probably - so hostile to it. Are physicians unfair by nature? My response to your post can be found in several posts at www.MDWhistleblower.blogspot.com under Legal Quality

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  2. Do you know what the word "screed" means? It's a "screed" to challenge lies and misinformation with scholarly research from the NEJM? Perhaps you think "screed" means "Something I disagree with, written by somebody who knows the issues a lot better than I do"?

    You do understand, do you not, that there is a big difference between trying to identify and solve flaws with the system and (a) doing things in the name of "tort reform" that are affirmatively harmful to patients without doing a whole lot to satisfy doctors, but provide significant benefits to insurance companies, and (b) lying or mischaracterizing the tort system? That is, the difference between working for honest improvement and doing what people like Newt Gingrich do for a living?

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  3. "If the system is working so well, then why is nearly every physician in the country - including yours probably - so hostile to it.

    That's supposed to be an argument? It's an emotional appeal - no factual or logical basis whatsoever.

    I understand why doctors don't like the malpractice system. I also understand why lawyers don't like either attorney grievance commissions or the possibility of malpractice suits. Nobody likes to be accused of being unethical or having provided substandard services, whether or not it's true.

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  4. @Aaron, the content and tone of your response suggests little opportunity for dialogue.
    @Atticus, if you can equate legal malpractice litigation with med mal lawsuits, than we have a different understanding of the issue. You will not find the legal community unanimously opposed to the current legal liability system, because there is no widespread fear of being sued. Fear of litigation, in contrast, exists in every doctor's office. While I acknowledge it is not scientific, query any doctor you know, or your own physician, and I suspect you will find the experience enlightening.

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  5. Michael, both of your posts to date have been ad hominem abusive. If you wanted to engage in "dialogue", you would have chosen a different tactic. As is abundantly clear from the many threads here that include dialogue, I love the stuff. As is also clear, I have little patience for people who substitute insults and abuse for "dialogue".

    If you're capable of dialogue, welcome to my blog - and if its' not too much trouble, please now get around to saying something thoughtful and relevant to the post.

    The only relevant thought you've shared so far is that the system needs to be reformed because doctors are afraid of being sued. You differentiate medical malpractice from legal malpractice because lawyers aren't afraid of being sued. Seriously? That's the only distinction, and the best argument for reform, that you can muster?

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  6. Michael, had you read the original post you may have gotten some insight into why tort reform hasn't taken away your fear. The post describes how tort reform has worked largely to the benefit of insurance companies, not doctors, and suggests that the reason that the insurance industry is not pressing for reform right now is because it could harm its own interests.

    To look at it another way, odds are you live in a state with damages caps, short statutes of limitations and repose, no "joint and several" liability, and some form of screening mechanism (such as affidavits of merit) before a malpractice case can be filed. The entire insurance company wish list.

    So why are you still afraid?

    Let's say you live in a state without one or two of those insurance company-driven reforms. How is their passage going to take away your fear?

    Even assuming there are reforms that would take away your fear, and I welcome you to identify them, it seems quite obvious that the reforms driven by the insurance company to date have not and will not satisfy your need for peace of mind.

    What, other than absolute immunity from lawsuits, will give you the peace of mind you are demanding from "reform"?

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  7. Of course, I do not want immunity. No physicians asks for this. Nearly every physician I know (admittedly not hard data) who has been sued, has been dismissed at some point. This costs time, money and creates great angst and turmoil. Every case that I have ever been involved with was dismissed, one of them a few days before trial. The affidavit of merit in Ohio is a joke. I'm on a bogus case now where the judge gave the plaintiff a 2nd 45 day extension to troll around for an atty to sign an affidavit. Shouldn't an affidavit of merit come before naming me? I recognize that tort reform serves insurance companies' interests, but this does not mean it's a bad idea. I have a sense that you haven't had an open exchange of views on this subject with practicing physicians. I come from a family of attys, some of whom have sued MDs. I know the other side well.

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  8. "I recognize that tort reform serves insurance companies' interests, but this does not mean it's a bad idea."

    Michael, nobody here has suggested otherwise. But reforms should work to make the system more just and more efficient for doctors and their patients, whereas tort reforms to date have worked primarily to the benefit of insurance companies, with incidental benefit (of a sort) to doctors - there's a benefit in a system that prices minor malpractice cases out of the system, as well as in the sort statutes of limitation and repose that apply in most states, although you will note that those benefits do not depend upon whether or not malpractice actually occurred. Damages caps do nothing to prevent frivolous lawsuits, and they affirmatively harm severely injured patients.

    I discussed in the original post how the abolition of joint and several liability has caused people who shouldn't be sued to be dragged into lawsuits. That doesn't only happen in medicine - it happens across the board. If you want me to agree that it's unfair to those dragged in "just in case" it turns out that they're liable? Conceded. Which is not to say that "joint and several liability" is even close to a perfect alternative, but I expect that in malpractice cases it did help keep innocent doctors out of litigation because it would have been their peers who had to drag them in.

    One reform that is sometimes mentioned by doctors is using a "no fault" system - something I believe would make both the number of accusations against doctors and the cost of the system skyrocket.

    Another theoretical reform I hear identified at times is to use "health courts", but I have yet to find somebody who can cogently define what a "health court" is, let alone how it would change anything about the status quo.

    I'm going to concede that certificates of merit amount to little more than a tax on filing a malpractice lawsuit - $5,000+ simply to get into court. That, again, works out for insurance companies by driving up the cost of litigation. The requirement probably does stop the filing of some marginal cases, both by virtue of the up-front cost and that there's not always a doctor around willing to sell an opinion. But given the information imbalance at the outset of many malpractice cases, even when the doctor writing the certificate of merit is acting in good faith the information that might exculpate a defendant is often not available at that stage in the litigation.

    "I have a sense that you haven't had an open exchange of views on this subject with practicing physicians."

    I have. A while back I helped a doctor get sanctions against a lawyer who had filed a baseless malpractice case - there was an injury due to a missed diagnosis, but not one that violated the standard of care. The lawyer wasn't competent to practice malpractice law, and was ultimately suspended from practice over his handling of the case. We had some good discussions about the law.

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  9. I come from a family of attys, some of whom have sued MDs. I know the other side well.

    It's good to learn that. Perhaps, then, you can identify some "tort reforms" that will:

    * Take away your fear;

    * Not undermine protections for patients who are actually injured by medical malpractice;

    * Improve the accuracy of malpractice litigation; and/or

    * Increase the efficiency of malpractice litigation - including resolving cases more quickly and at a lower cost.

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  10. While I can't issue a plan in this space, I share all of the objectives outlined in your prior comment. I do not insist upon caps. I favor a system that makes patients 'whole' who have been injured by negligent care. I think the medical community has not provided optimal oversight of its practitioners. I insist on a mechanism that will set a higher bar for suing physicians, so that an innocent physician defendant is a rare event. Once there is consensus of shared goals, then the details can be worked out, provided folks can set aside their self interest from the public's interest.

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  11. Let's simply start with the goal you identified - "a mechanism that will set a higher bar for suing physicians" but without unduly prejudicing the plaintiff's ability to file a lawsuit. You've seen how long some of my comments are - there's room. ;-)

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  12. On a different tack . . .

    1) One way to both reduce the cost of health care and (as a by-product) increase its availability would be to reduce the standard of care. (Which would also have an impact on malpractice law . . . )

    2) Most "actual" care is provided by nurses and techs anyway, yet a huge driver of cost is the MD who signs the paperwork and does (in many cases) precious little else.

    3) If we had a system driven by PAs or RNs instead of MDs there would be immediate cost savings.

    4) The AMA and its ilk will argue that only "MD's" can provide a high enough standard of care . . . the same thing they argued about other providers in the past. As long as you know that the care you are getting is coming from a PA or RN, why shouldn't you be able to trade off some qualify for cost savings? We do it pretty much everywhere else.

    CWD

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  13. If folks want to take their sick kids to PAs or NPs, I'm okay with this. While I believe that MD care is superior because of our training and experience, I support people making their own choices about what they purchase. Keep in mind, under the present system, midlevel providers are under a physician's authority who still has full responsbility and liability over the encounter.

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  14. . . . under the present system most of the potential cost savings are absorbed by the "supervising" MD.

    Under my proposed system the MD becomes more of a "first level" specialist to be called in only as needed.

    CWD

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  15. There would have to be an adjustment of the standard of care - an acceptance that the P.A. or R.N. who provided the care would do so based upon a lower standard than a physician - or I expect that insurance companies would kill the idea off with through-the-roof malpractice insurance rates.

    But let's say that could be overcome. I still don't see it happening. Dr. Kirsch may not mind the competition but (as with bar association opposition to paralegal services that cross the line from merely assisting with the completion of forms into offering legal advice) I expect that the medical establishment will ensure that it does not happen.

    My P.A. experiences are limited. At one doctor's office, I was examined by a P.A. who was clearly a fish out of water - he was insecure, underskilled, rushed, and needed to repeatedly consult the doctor. A significant number of years later, at a different doctor's office, the P.A. was skilled, professional, and able to devote about an hour of one-on-one attention, in contrast with the two "in and out" doctor's appointments I had previously experienced for the same infection. As with doctors, "your mileage will vary".

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  16. re: reduction of standard of care - that was my first point in the last post.

    re: the medical establishment - it is guaranteed that they try, but their opposition strikes me as being a fairly ubiquitous problem to any sort of meaningful reform that addresses cost.

    CWD

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  17. It's a shame that Dr. Kirsch was unable to produce even one idea for a balanced tort reform - something that would increase the accuracy of the system, reduce doctors' fear, and protect patients.

    Not even one.

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  18. On the one hand, I suspect that when Dr. Kirsch wrote "I can't issue a plan in this space" he mean't "I won't issue a plan in this space". Under that interpretation it's not a surprise that he hasn't come back to share any.

    I would be interested in hearing any ideas he has; I can't find where he's broached them in any forum. I suspect, though, that having accepted the objectives you outlined, he found that it's not so easy to put forth workable ideas for reform. The status quo may be ugly, but we didn't end up here by accident - these issues are tough to balance.

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  19. he mean't "I won't issue a plan in this space". Wrong. I meant that I don't think you can solve the perverse tort reform system on a blog comment space. First, those who are satisfied with the status quo need to explain their support for a system that:
    (1) Wastes billions of $ on defensive medicine that patients don't need
    (2)Is reviled by nearly every competent and conscientious practicing physician
    (3)Fails to compensate the vast majority of patients injured by medical negligence, as they are not captured by the system

    Do you see any merit in these 3 points without ranting about the insurance companies?

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  20. What are you bringing to the table, doctor? The problem isn't that you can't post comments in a blog addressing big issues. The problem is that you have no ideas.

    You have no ideas as to how we could save even a penny of "defensive medicine" costs without offering doctors absolute immunity to take away their (largely irrational) fears.

    You have no ideas as to how to construct a system that is fair to patients that won't be "reviled" by doctors - as if that's an appropriate measure for a system meant to hold doctors responsible for their professional negligence.

    And it's great that you acknowledge that the cost of malpractice is much higher than the statistics trotted out by "tort reformers" suggest, with that cost being borne by malpractice victims. But you have no idea how to reform the system to compensate those victims of malpractice. Then there's the issue of doctors "reviling" the present system, in which about 90% of malpractice victims make no claim. How much more will they "revile" a solution you fashion that brings meaningful relief to that vast majority of injured patients?

    Nobody here is confused about the role of insurance companies. So what's your parting shot really about?

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  21. "I meant that I don't think you can solve the perverse tort reform system on a blog comment space.?"

    Well, no kidding. But it's possible to exchange and discuss ideas and to reach a greater understanding, even if we don't expect to solve the world's problems.

    You claim to understand the issues and to have insight that you could share. Picture a self-proclaimed great poker player who, every time he's has to ante up, instead pushes away from the table while hollering "You're all cheating". From the moment of your first comment, we've been waiting for you to ante up.

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  22. I had asked in my prior comment for your comments on my three points describing what I feel are serious flaws in the current medical liability system. You chose not to 'ante up' to my inquiry. The point about universal revulsion of the system by physicians indicates that reform is needed. If there were only a vocal minority of physician whiners, then they could be dismissed as disgruntled. However, if an entire profession is hostile to the tort system, then don't you agree that it may be the tort system that needs reform? I look forward to your response.

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  23. You have a response to your "list of flaws." You're just unable to put any meat on the bones of your argument.

    Again, tell us about the fair substitute you have for the current malpractice system - one that has a higher level of accuracy than the (quite accurate) civil tort system, has lower costs of administration, provides sufficient compensation to most or all actual victims of malpractice, puts an end to defensive medicine....

    If your pattern holds we can expect your response to be evasive, hostile, or both. But at least on this subject you appear to be incapable of offering substance.

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  24. Almost nobody likes the IRS, completing tax returns or paying taxes. Pretty much everybody agrees that the tax system could be improved - although there's wide disagreement as to what form the improvements should take. But no sensible person would argue that just because the typical American's feelings toward our system of taxation runs from "dislike" to "despise" that the system of taxation should be abolished. And no sensible person would approach the issue from the standpoint of, "Virtually nobody likes taxes, so the system must be defective" - as taxes will never be popular.

    Almost nobody looks forward to being vaccinated. Vaccines are sold to the public as a necessary evil, so people turn their heads or hold their kids down while the doctor or nurse sticks them with the needle. But the fact that vaccines are unpopular doesn't mean that it's poor public policy to encourage widespread vaccination. Sometimes you have to suffer a bit for the system to work for the greater good of society.

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  25. First, I don’t know that I’ve actually heard anyone “champion the cause” of the status quo. Second, if I understand your points correctly, let me add mine to them:

    (1) Wastes billions of $ on defensive medicine that patients don't need – The two proposed solutions that seem to have the most chance of having impact in this area (and have about the least chance of ever getting enacted) would be:

    a) Reducing the standard of care to promote competition and cost savings, and

    b) Changing the billing model for a fee per service to a “fee per cure.” Only under the current model could we have a system where the insurance company will pay for the amputation of the “wrong foot” (because the service was performed) and then go back and pay again when the “correct foot” is amputated.

    (2)Is reviled by nearly every competent and conscientious practicing physician

    a) Yet, amazingly enough – they are all still practicing in it.

    b) You’d think that if the entire profession wanted to see change, you might actually see some. Or are you arguing that “competent and conscientious” physicians are in the minority?

    (3)Fails to compensate the vast majority of patients injured by medical negligence, as they are not captured by the system

    a) This is an interesting, if somewhat ubiquitous issue – the last studies I saw (many years ago) indicated that the vast majority of incidents of medical malpractice did not result in any form of litigation whatsoever.

    b) A study by Harvard showed that (I believe) the majority of deaths at the hospitals studied were the results of conditions other than the condition the patient was diagnosed as suffering from . . .

    c) I’m not sure if this is an argument for greatly lowering the bar to bring a medical malpractice lawsuit or an argument that the legal standard of care should be lowered to reflect the degree of incompetence prevalent in the medical community . . .

    CWD

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  26. CWD, you're such a card. ;-)

    The study to which you allude, I believe, related to a comparison of diagnosis to cause of death as determined by autopsy. The study found considerable divergence, but that the treatments administered were still largely correct. (Similar conditions responding to similar treatments; symptomatic treatments being appropriate even if the cause of the symptom was not properly determined; etc.) I'm also thinking that this study is 20 or so years old, so my memory is vague. For a number of reasons, including cost and issues of family consent, it's not likely to be repeated for the modern era.

    A fee per cure system? That would certainly save us the @20% of health care costs that go to end-of-life care.... And most psychotherapy and addiction treatment would be free! ;-)

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  27. While I doubt that any recommendation will gain traction here, here is a suggestion. Maintain caps on non-economic damages, which I have supported in Ohio as we had no other available remedy. The acute flaw, in my view, is the absence of a meaningful barrier to sue innocent physicians. Establish a health court or panel that would determine if there is a reasonable basis to sue a doctor. If the panel agrees that there is a reasonable case for negligence, then the physican is sued. If the panel concludes that there is no reasonable basis, then this negative judgement should raise the bar for suing. If the plaintiff wants to sue anyway, even if the panel does not believe there is a reasonable case, then if the defendant prevails, his legal fees should be shared by the plaintiff and his attorney. This mechanism still preserves the patient’s right to sue, but raises the stakes for the plaintiff & attorney if they do so despite a conclusion by an impartial panel that a case should not be filed.

    This system, which would have to be carefully worked out, would help to separate innocent from negligent physicians at the outset, something that the current system isn’t designed to do.

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  28. Why do we limit the "increased protection" to doctors? Why not all professionals? Why not everybody?

    One of the problems you noted earlier was that most medical malpractice victims never make it to court, I'm not sure that making it more difficult to bring a law suit will really help that problem.

    CWD

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  29. Damages caps violate pretty much every standard of fairness you have previously described, punish the severely injured, have little to no effect on insurance rates, and have done nothing that I can see to make doctors less "afraid" or dislike the system any less than they did before. So what's their appeal to you?

    Health courts... that's a concept. It's a bit like saying we could have a better tax system if we adopt "tax reform". What, exactly, is a health court?

    Health courts are a sufficiently interesting idea to justify a post; I'll try to find the time over the next week.

    CWD, a malpractice defense lawyer (who is now helping to reshape how a major medical center approaches malpractice claims) once commented to me that he saw it as an injustice that monied groups that can afford to lobby legislatures get immunities from liability that the rest of us don't enjoy. From an objective standpoint, it's a defect in our system. Some of the beneficiaries know that - insurance companies know what they're doing - but it probably passes beneath the attention of many of the incidental beneficiaries of "tort reform".

    I could see a "health court" fashioned to facilitate, even encourage, the making of claims by individuals injured by malpractice. But, particularly if plaintiff's lawyers were no longer pre-screening applicants for damages awards, I expect that doctors would end up hating such a court far more than they hate the status quo.

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