With Bipartisanship Like This, Health Care Doesn't Need Enemies

When you hear about an organization that calls itself the "Bipartisan Policy Center", what's the first question that comes to mind? If I spot you this essay, might it be, "I wonder how they bankroll themselves, whose policy positions they're pushing under the guise of 'bipartisanship'"? No real surprise - when you are willing to offer a big enough paycheck, you can get people from both sides of the aisle to sign on to your clients' positions.

So, then, what's the basic premise of this special interest front group?

What we learned is that, until better care is prioritized over more care, our nation will continue to face a problem with health-care costs. The good news is that, through thoughtful policy, health-care practitioners can be encouraged through rewards to focus far more on what is best for their patients and less on the number of tests and procedures they can order. The even better news is that such a health-care vision can not only produce better care but also cost less.

So... Bill Frist has given up his habit of diagnosing medical conditions from the Senate floor, then insisting that their lives be prolonged indefinitely no matter what the financial cost to the country or emotional cost to their family? Was it the "bipartisanship" that brought him around, or the paycheck, because... You'll please excuse my skepticism that Tom Daschle and Bill Frist couldn't see eye-to-eye on what was good for the nation when they were being paid by the taxpayer to do so, but fell into a warm mutual embrace of their employer's policy position the second they entered the private sector.

Well, they claim that we can pay less and get better healthcare. So how do they, the admitted beneficiaries of the best health care our nation has to offer, far better than the average American can presently hope to obtain, propose to give us this "higher quality and greater efficiency" at a lower cost?

To address these, we seek to promote coordinated and accountable systems of health-care delivery and payment, building on what has proved successful in the private and public sectors. Organized systems of care emphasize the value of care delivered over the volume of care. These systems are often better able to meet patients’ needs and desires and are able to effectively reimburse providers and practitioners for delivering high-quality care.

That sounds like... obfuscation. It would be helpful if they would start by identifying the systems that have "proved successful in the private and public sectors", but... I know, far too much to ask. Besides, if they were to approach that issue honestly they would have to praise the efficiency and popularity of Medicare and the single-payer V.A. system, as well as the fact that every other industrialized nation has managed to offer an overall quality of care comparable to that of the U.S. at a considerably lower cost.

So, if they cannot identify even one of the "coordinated and accountable systems of health-care delivery and payment" they used as their model, perhaps they can help us by giving us examples of that coordination and accountability. You know, of the sort of measures that will result in better care for less money.

• They propose to "Preserve the promise of traditional Medicare while adding more choices and protections for beneficiaries, including accountable systems of care and a stronger, more competitive Medicare Advantage program." So "keep Medicare but with added buzzwords" - and then magically create a "stronger, more competitive Medicare Advantage program"... does that mean, one that won't require massive subsidies to attract even a single consumer to migrate from standard Medicare? Just asking.

• They propose to "Strengthen and modernize the traditional Medicare benefit, including adding a catastrophic cap, rationalizing cost-sharing and premiums and expanding access to assistance programs for those with low incomes" - in case you're not paying attention, what they're saying here is that they want to cost-shift from the Medicare program to its beneficiaries. So... their two leading ideas have nothing to do with improved systems or providing better care. Should we hold our breath and expect things to get better?

• They want to "Reform the tax treatment of health insurance to limit the taxfavored [sic] treatment of overly expensive insurance products" - In other words, if you have really great coverage (like the kind they, personally enjoy) they want to increase the tax burden on your employer so that your employer will offer you lesser coverage. Once again the entire focus is on shifting the cost of care from insurance to the consumer, and has absolutely nothing to do with improving care or efficiency.

• They propose to "Empower patients by promoting transparency that is meaningful to consumers, families and businesses, and streamline quality reporting" - which, if they have actually studied the issue, they know translates into meaningless twaddle. But heck, it sounds like it came right out of a mission statement generator, so odds are you never thought it was anything but meaningless twaddle. The most charitable reading is that they propose to give consumers more information so that they can make their own decisions about their healthcare instead of deferring to their doctors. Oh, you thought you were going to hear about things that work, things that improve care and lower costs, rather than the usual tired nonsense about how consumers can learn to manage the intricacies of their own medical care? Well, guess again!

• They're going to "Advance the nation’s understanding of potential cost savings from prevention programs, through support for research and innovation on effective strategies to address costly chronic conditions" - because, you know, telling people, "If you don't smoke, lose weight, eat better, and exercise more, you'll be healthier", has been such a successful strategy to date. Because so many people have yet to hear that sort of hectoring.

• Back to twaddle, "Offer incentives to states to promote policies that will support a more organized, value-driven health-care delivery and payment system, such as supporting medical liability reform and strengthening their primary-care workforce." In the real world, "medical liability reform" - that is to say, denying victims of malpractice effective redress through the courts" - has not resulted in cost savings. But clearly it's something that their employer's clients want, so there it is! And what does "strengthening the[] primary-care workforce" mean? Clearly it doesn't mean "hiring more primary care physicians", as so far this proposal is about anything but encouraging people to see their doctors when they're sick.

They pat themselves on the back,

All of these policies are designed to improve the quality and value of our nation’s health care. That is where every health-reform effort should start.

Sure, if we pretend that "improve the quality and value of our nation’s health care" is synonymous with "improve the bottom line of the industry groups that fund our organization". Given that none of the proposals as stated has any realistic chance of either improving the quality of care or improving the efficiency of the provision of care, but can be guaranteed to raise both cost and risk for the consumer, it's difficult for me to believe that they're fooling anybody with this other than the guy on the Washington Post's editorial board who approved the essay. I joke - the editorial board and its members push this sort of editorial with some regularity, knowing full well that they're at best pushing a half-truth and at worst pushing something that's good for the bottom line of the insurance, pharmaceutical or hospital industry even if harmful to consumers.

By presenting this report to federal, state and private-sector leaders, we hope to promote a collaborative dialogue and a shared understanding of strategies to put our nation’s health system, as well as its economic outlook, on a sounder, healthier and more sustainable path.

No, really, they don't. All four of the authors had the opportunity to do what was right for the nation when they held elected office, or when they worked in the public sector. Their unified front comes not from a realization of how obtuse and destructive they were when they couldn't agree, but from the fact that they won't keep their jobs if they don't push their employer's agenda. How about a little bit of honesty?

Defensive Medicine and Fear vs. Reality

Robert Samuelson describes the hypothesized fear that some claim causes doctors to prescribe unnecessary (and sometimes potentially harmful) tests to avoid a potential malpractice claim,

The [journal Health Affairs] argues that rapid growth [in health spending] was driven partly by powerful non-medical forces: Demanding patients insisted on scans; doctors feared malpractice suits if they refused; and doctors and hospitals wanted to maximize revenues. What explains slower growth is that these incentives weakened....

One change was the adoption of prior authorization by many private insurers. Doctors usually had to get permission for advanced imaging and, if patients’ conditions didn’t comply with guidelines, explain why. This may have discouraged referrals, because doctors don’t like being overruled. Patients also became less demanding, because deductibles and co-payments rose.

Yet despite less of this expensive testing in cases where it's not needed or where the need is borderline, there has been no increase in malpractice litigation. To the contrary, the number of malpractice lawsuits continues to drop.

The leading problem with the argument that unnecessary imaging studies were driven by fear of malpractice litigation is that a doctor can only be held liable for malpractice if he violates the governing standard of medical care - a standard defined by doctors, not by lawyers. The conceit is that the additional test might reveal something that did not show up in prior tests, saving the doctor from a "failure to diagnose" claim, but even without the test if the doctor established that he adhered to the governing standard of care the claim would not succeed.

Under the former model implied by Samuelson, the doctor meets with the patient, the doctor either says "This really expensive imaging study is unnecessary and won't help me diagnose your problem," or makes a statement he knows to be misleading, "We need this really expensive test to verify your diagnosis", the patient responds, "I want it anyway", and the doctor goes along with the patient's request.

The first explanation offered for the drop in testing, that insurance companies became more likely to require prior approval and "doctors don’t like being overruled" undermines the notion that fear of malpractice litigation is a significant factor. It is difficult to believe that a doctor who is willing to order medically unnecessary tests on large numbers of patients in order to avoid the tiny chance that one will later file a frivolous lawsuit against him is going to have such a dramatic change of heart, "I'm not even going to mention the additional test because the patient might want it, and then the insurance company might say 'no'."

Further, Samuelson informs us, "Data from one insurance group suggested that about half the MRI slowdown involved lower back, elbow and knee pain." (The article Samuelson references also mentions low-value MRI's of the pelvis.) Lower back pain can be associated with serious medical conditions, but the study distinguishes MRI's "used to diagnose lower back pain" from those ordered when a patient is "considering surgery or physicians strongly suspected systemic disease". But leaving the lower back aside, it's difficult to believe that doctors are ordering large numbers of knee and elbow MRI's as "defensive medicine".

More than that, its unlikely that the doctor is going to know what any given insurance company will or will not approve before his office checks the policy terms and, if necessary, makes the request. It's even less likely that it will be the doctor making the call. Why would a doctor fret if an insurance company says "no" to one of his clerical staff? If the doctor believes that the test is medically necessary, he is likely to fight the insurance company. I've dealt with medical clinics who have a full-time employee whose only job is to push back against insurance companies' efforts to deny or limit care.

The second explanation, speculation that "Patients also became less demanding", seems like a big stretch. If a test is medically necessary, the doctor is going to push the patient to get the test despite the out-of-pocket cost. If your doctor tells you, "You need a $5,000 medical test in order for me to diagnose your condition," even if you're one of the "27 percent" of "workers with deductibles exceeding $1,000", odds are you're going to bite the bullet. Odds are you'll be billed after-the-fact, and you only pay a deductible once. If you're looking at very expensive medical testing odds are that you have an underlying medical condition that is going to take you across that line, anyway.

The concept of "defensive medicine" Samuelson implies would also presuppose a highly informed patient. They see the doctor for diagnosis and treatment. The doctor provides care he believes is appropriate. They then ask, "Shouldn't we also use the [specific expensive medical test or imaging study]?" The reality is, confronted with a non-specific diagnosis or statement by the doctor about a low-probability but high consequence possibility in a differential diagnosis, the patient is likely to ask, "Isn't there anything else we can do," with the doctor identifying the additional test that could be performed.

It's difficult to see how the "defensive medicine" line would have changed. It's unlikely that the doctor who is inclined to order unnecessary testing is fretting, "Oh no, if I mention the test there's a one in four chance that they have a high copay and they might refuse it," or "Oh no, if I mention the test they may have insurance that requires pre-authorization and the request may be denied." If they don't mention the test to the patient they're right where they would be without "practicing defensive medicine" - they can still be accused of not mentioning or ordering the test. If they recommend the test and don't push the patient to fight an insurance company denial or to pay the copay, they are similarly exposed.

If the assumption is that certain doctors will liberally prescribe medically unnecessary tests only if they don't expect to encounter friction - only if they expect an insurance approval, and only if they believe that the patient's contribution to the cost of the test will both be known to the patient in advance and not scare off the patient - then "defensive medicine" really translates into, "I'll order whatever testing I think the insurance company will pay for." There's a madness to that method, as there's always one more test you could order and, frankly, the patients with the best insurance likely fall within the population that is least likely to sue.

It could be hypothesized that the economic changes have forced a learning process on the part of doctors - that frivolous malpractice lawsuits are so rare, ordering unnecessary medical testing has no meaningful impact on whether or not any given doctor gets sued. But then, as Samuelson notes, there's the elephant in the room:

Finally, some reimbursement rates fell. In 2005, Congress mandated that Medicare couldn’t pay free-standing imaging centers — often owned by doctors — more than it paid hospitals for outpatient imaging. This “reduced profits for imaging centers and resulted in extensive consolidation in the industry,” the study said. Under complex reimbursement rules, doctors had incentives to establish imaging centers or install scanning devices in their offices, says Levy. And these imaging centers seemed “particularly active in stimulating demand.”

That is, it appears that the leading cause of unnecessary medical imaging, performed at the highest cost, was physician self-referral - sending patients to receive tests at centers owned in whole or in part by the doctor making the referral, with the referring doctor having both the need to keep his imaging center busy and receiving a share of its profits. No, I'm not going to argue that this was a standard practice across the board, and even within the context of self-referral I'll give the majority of doctors the benefit of the doubt, that they referred patients to their own clinics for tests they would have ordered anyway - the difference being much more one of where the test is performed than whether it is ordered. But self-referral has long been identified as one of the leading causes of unnecessary medical testing, a genuine, documented cause of medical inflation.

It is easy to understand why a doctor does not want to be accused of malpractice under any circumstances, and why a doctor would want to avoid being sued even in a context in which he will easily defeat the suit in the early stages of litigation. People who argue that "defensive medicine" plays a large role in the cost of medicine ignore the fact that to the extent that "defensive medicine" exists, it is largely driven by emotion. Were "defensive medicine" is driven by facts, you would expect to see a reduction in low-value medical testing when the rate of malpractice lawsuits drops. Yet the prevalence of low-value testing and the cost of medical care is not correlated to the number of malpractice lawsuits. If doctors believed that certain expensive tests were necessary to avoid potential lawsuits, even if not medically necessary, you would see them pushing patients to pay for the tests and fighting insurance companies to gain approval. Instead you see them deferring to insurance companies or, it would seem, not even mentioning to patients tests that might stretch the patients' pocketbooks.

What you do see through studies such as the one Samuelson describes is that you can reduce the number of low-value tests across the board by changing the economic environment for such testing. That is, whether referrals for low-value testing are driven by a strong desire to diagnose a tricky condition, self-referral and profiteering, or "defensive medicine", there appears to be an across-the-board reduction in the number of such referrals when you change how you compensate doctors for the tests and the amount that patients must contribute in order to obtain the low-value test. Rates of malpractice litigation, damages caps and the like don't matter.

As long as any malpractice lawsuits are allowed, you're going to see doctors express that they fear frivolous lawsuits. History tells us that, short of a grant of absolute immunity, changing the tort system won't affect how doctors practice medicine. (The prior, ugly history of when doctors were all-but-immune from malpractice litigation should not be forgotten.) But, to the extent that defensive medicine even exists, if you can eliminate most or all "defensive medicine" by adjusting financial incentives, it's a peripheral issue - something that can be successfully addressed through indirect, economic reforms. Given that despite years of debate, there's still no consistent definition for or objective measure of what constitutes "defensive medicine", and "tort reform" has had no impact on its supposed practice, focusing on economics seems like the way to go.

Medical Malpractice Tort Reform and Federalism

Following up on some Volokh Conspiracy posts about the relationship between tort reform and federalism, Jonathan Adler quotes Walter Olson on the subject. Olson suggests that there is

a very real difference between areas like product liability and nationwide class actions—in which suits ordinarily cross state lines, and the majority of runaway verdicts are against out-of-state defendants—and more conventional kinds of tort litigation arising from car crashes, slip-and-falls, and medical misadventure, where cases are mostly filed against locally present defendants. As a rough rule of thumb, it’s worth presuming that most of the local suits do not externalize heavy costs across state lines and should accordingly be left alone by Congress unless it is itself vindicating some constitutional right or coordinating the functioning of some constitutionally authorized federal government activity.

Adler extrapolates,

Olson is anything but an opponent of tort reform generally. Indeed, he’s been one of the litigation explosion’s most prominent critics. But he recognizes that support of a particular policy goal does not require abandoning a principled commitment to the broader federalist scheme.

I'll take Olson's comments at face value, but let's recognize that not all insurance companies or medical industry lobbies want federal "tort reform". This battle has already been mostly won at the local level. It's difficult to conceive of a federal "reform" that would so heavily favor industry as to preempt state laws and caps that are less restrictive than the federal standard while allowing states to set more stringent standards and lower caps. Which is to say that states like Texas, that have all-but-eliminated medical malpractice as a viable tort, would likely see a federal reform reduce the burdens and hurdles they have placed in front of plaintiffs.

Further, part of the reason for local success is that it has become relatively cheap and easy to influence state legislatures and appellate courts, with insurance companies pouring millions into state supreme court races with the intention of electing judges favorable to their positions on such issues as tort reform. Following them Ohio Supreme Court's rejection of damages caps in malpractice case, the insurance and medical industries worked hard to change the composition of the court - not to change the law or state constitution, but to change the judges who interpreted and applied the laws and constitution - with the result that a reconstituted state supreme court found damages caps to be permissible.

If you federalize restrictions on medical malpractice cases you change that context significantly. Suddenly a single example or case can be used to propel a national public relations campaign to make the system more fair - and if you're honest about the impact of tort reform you know that's the opposite of what the insurance companies want. Reforms that increase the cost of litigation for plaintiffs but do little to nothing to improve the integrity of the system, such as requiring "certificates of merit" in association with the filing of a malpractice suit, might be challenged. Low, one-size-fits-all caps on "pain and suffering" damages might be revealed as absurdly low for certain severely injured patients - as they are. Caps would likely also be indexed to inflation, rather than remaining subject to a rigid, unchanging cap for years or decades.

In implementing tort reform, it is conceivable that Congress would do a better job than most states in creating a fair and balanced system. That isn't going to be reassuring to the insurance industry, so we can't be particularly surprised if national tort reform advocates find sudden value in federalism - you don't bite the hand that feeds you. Why, despite an express willingness to include tort reform in the Health Care Reform Act, did the issue all-but-drop off the radar in the otherwise contentious debate over the bill? In my opinion, because federalizing the issue is no longer a priority, and for the reasons I just provided may in fact be viewed as a negative, by a healthy proportion of health and insurance industry lobbyists.

Telling Tales Out of School

I stumbled across some pro-"tort reform" pablum from George Will - a pretty standard, "I read a book, accepted its allegations without question, and here's what it said"-type analysis typical of far too many columnists coming up on a deadline. The column opens with the usual array of anecdotes that's supposed to scream out for "reform":

Called to a Florida school that could not cope, police led the disorderly student away in handcuffs, all 40 pounds of her 5-year-old self. In a Solomonic compromise, schools in Broward County, Fla., banned running at recess. Long Beach, N.J., removed signs warning swimmers about riptides, although the oblivious tides continued. The warning label on a five-inch fishing lure with a three-pronged hook says "Harmful if swallowed"; the label on a letter opener says "Safety goggle recommended."

This sounds like pretty standard tort-reform propaganda - take anecdotes from around the nation (and, in the case of "funky warning labels" actually the world), strip them of context, provide no dates, and pretend that they're typical. It's what I've characterized as Readers Digest reasoning, as it's the "biased sample" approach many of that publication's columns have historically taken to convincing its audience of some great wrong that must be righted. I'll get to the school example later, as Will references a couple of others in his next paragraph.

• In a Solomonic compromise, schools in Broward County, Fla., banned running at recess - Apparently in 2005, Broward County posted signs around playground equipment stating "no running" but according to Safety Director Jerry Graziose, the Broward County official who ordered the signs, the issue was that "It's too tight around the equipment to be running."

  Had Will done his homework, he would be pointing out that the rule was short-lived, and Broward County's published rules do not have anything even slightly resembling a "no running at recess" rule for any grade level. (See, e.g., the 2007-2008 Playground Handbook (PDF).¹) But you know, that would involve checking the school district's website or picking up a phone and calling them - way too much work.

• Long Beach, N.J., removed signs warning swimmers about riptides - This was apparently recommended by their lawyer in 2004, based upon the theory that they did not have to warn of natural dangers and that providing an inadequate warning could create liability where none otherwise existed. There's no indication I can find that there was ever any actual litigation over the adequacy or inadequacies of the warnings. I can find no indication that this is a trend, or that it got much of any notice outside of the community of pro-tort reform propagandists.

• The warning label on a five-inch fishing lure with a three-pronged hook says "Harmful if swallowed"; the label on a letter opener says "Safety goggle recommended" - So what? Most likely, the guy assigned to making warning labels was sitting at a desk in China, had no clue about western law, and ended up writing a silly label - or copied one from another product because it was easy, or because he didn't understand enough English to compose his own (the author of the label didn't know enough English to pluralize "goggles"). If the suggestion is that lawyers made those labels necessary, quite the contrary - had the manufacturer consulted a lawyer, it would have been told that they were not.

  The fishing lure story appears to date back to 2004, when a story about it first appeared on a pro-tort reform propaganda website. Outside of pro-tort reform websites and credulous columns like Will's, I can't actually find evidence that these labels exist. They probably did exist at one time, but they're anomalies.

So a policy from 2004 in one New Jersey Township that may or may not still be in effect, a playground policy from a single school district in 2005 that appears long-abandoned, and a couple of wacky warning labels that date back many years, haven't been adopted by any products currently on the market, and can't be independently verified.... What an overwhelming case for "tort reform".

Will continues,

No official at the Florida school would put a restraining arm around the misbehaving child lest he or she be sued, as a young member of Teach for America was, for $20 million (the school settled for $90,000), because the teacher put a hand on the back of a turbulent seventh-grader to direct him to leave the classroom. Another teacher's career was ruined by accusations arising from her having positioned a child's fingers on a flute.

The first anecdote is true, dating back to 2006 - it may be that under the school's policies, no teacher could touch the child and thus nobody would do so. But that's not because of the law - it's because of rules imposed by school administrators. The first issue is legislative - when legislatures wish, they can authorize corporal punishment in schools, to the point of severe beatings, with none of the teachers or staff involved needing to be in any fear of being disciplined or sued. The second problem is that, when addressing this type of issue, school administrators tend to be lazy cowards. They implement policies that make it less likely that they will have to make decisions or deal with angry parents, then they blame fear of litigation for their own fecklessness. But one way or another, Will's again referring to a years-old example, an exceptional anecdote that in no way represents either common practice or a trend.

The "flute" story, I suspect to be fiction - or so far divorced from the facts as to amount to fiction. No details are provided, no names, no locations, so it's impossible to even attempt verification.

The remaining story, that of the Teach for America corps member who was sued for allegedly striking a student, caught my eye. Will is again going back quite a few years, to 2001. The TFA member, Joshua Kaplowitz, gives his version of events from his second grade classroom here:

The afternoon of June 13 started with the usual mixture of disorder and disrespect. This time, a boy named Raynard, a particularly difficult child, whom I had seen punch other students and throw things in the past, was repeating over and over, “I got to go to the bathroom. I need some water.” The rest of the class tittered as I told him in my sternest teacher voice that we would be having a class bathroom break once everyone was quiet and in his seat.

“I got to go to the bathroom. I need some water.”

Frustrated, I led him to the classroom door with my hand on the small of his back. I nudged him into the hall and closed the door. He would probably spend the remainder of the day roaming the halls with the rest of the troublemakers at Emery, but at least he would be out of sight, so I could get the rest of my class under control. I had given up on teaching for the rest of the day; my class was slated to watch a movie with Ms. Perkins’s first-graders across the hall.

Once Raynard left, I guided my students through a characteristically raucous bathroom break and filed them into Ms. Perkins’s room, where they lapsed into a rare TV-induced calm.

After 15 minutes, the school security guard appeared at the door and beckoned for me. My stomach hit the floor, as I guessed what this meant: yet another corporal-punishment charge. But this time was different. Chaos reigned in the main entranceway as police officers swarmed into the building. Raynard’s mother, I was told, had been in school for a meeting to place her son in a class for emotionally disturbed children. Raynard had told her that I had violently shoved him in the chest out the door of my classroom, injuring his head and back. His mother had dialed 911 and summoned the cops and the fire department. The police hustled me into the principal’s office, where I sat in bewilderment and desperately denied I had hurt Raynard in any way.

He ended up being charged with misdemeanor assault, and the school settled the lawsuit filed over the incident. A part of me wants to sympathize with Mr. Kaplowitz, but a larger part of me can't get past the self-serving, self-justifying tone of his essay. It's what psychologists call "external locus of responsibility" - everything that goes wrong is somebody else's fault - but his bad attitude toward teaching, his colleagues, his sponsoring organization, and his students oozes out of every word.² Could that have influenced the decision to settle?

What sort of witness testimony might have come up in a civil suit against Mr. Kaplowitz. Calling to the witness stand, Mr. Nick Ehrmann, a fellow TFA corps member who taught in a nearby classroom. Yes, things were difficult at the school:

We all faced incredible challenges throughout our first year - administrative turnover, lack of school discipline, and the resulting transfer of power to disruptive students who exploited this vacuum of administrative accountability. My classroom was frequently a stage for fistfights and tears. The difficulties that Josh describes were painfully real, and we all experienced them in similar degrees.

Despite the difficulties, which include frequent, false accusations of corporal punishment against teachers, and which appear quite extraordinary, Mr. Ehrmann found ways to work with his students and parents. Back to Mr. Ehrmann:

So why was Room 308, just two doors down, the scene of almost constant chaos?

I can’t pretend to know what happened inside those four walls. But I did witness moments that Josh does not mention in his article. I did witness Josh argue with and interrupt our principal during one of our first faculty meetings of the year. I did witness Josh berate a lone student in the hallway, his anger clearly uncontrolled. I did witness Josh place his hands upon this student’s shoulders and shove him against the wall while yelling in his face. Good intentions should not be an excuse for bad decisions.

Cross-examination, Mr. Kaplowitz?

Nick’s creativity is evidenced by the dramatic license with which he describes a hallway incident I omitted from my article - far more exciting in his retelling than in reality.

That's it? "Dramatic license"? The implication that there's more to the story? But no explanation of how Mr. Ehrmann's statement is inaccurate, misleading, or mischaracterizes a flagrant violation of the school's rules against corporal punishment?

Are you beginning to sense why the case settled?

Yet even as the lawsuit dragged on and the legal cloud over me caused me to lose a job opportunity I really wanted, I refused to entertain Raynard’s mother’s offers to settle the case by my paying her $200,000 - a demand that ultimately diminished to $40,000. The school system had no such scruples; it settled the mother’s tort claim in October 2002 for $75,000 (plus $15,000 from the teachers’ union’s insurance company—chump change compared with the cost of defending the litigation).

George Will says that translates into the case settling for $90K. But it sounds like, despite his scruples, Mr. Kaplowitz may have chipped in an additional $40K.

That was a long digression from Will's editorial, but it is illustrative of the problem. To hold the Kaplowitz story up as an example of a trend, or something that makes tort reform necessary, is absurd. Faced with unsympathetic facts, school administrators and teachers who were aware of Mr. Kapolowitz's difficulties with his classroom and students, and at least one known incident of inappropriate, angry physical contact with a student, it wasn't a good case to take to trial. And like every one of the stories in Will's parade of horribles, it occurred many years ago.

The sad part is, this is what you routinely get from tort reform advocates, and those like Will who choose to repeat their claims without care, thought, or investigation. If there's such a compelling case to be made for tort reform, why is it so hard to find a "tort reform advocate" who will approach the subject with so much as a whit of honesty?³
___________

1. Note to Broward County: "Helmit" is not an acceptable alternative spelling of "helmet".

2. The biggest problems Mr. Kaplowitz faced in the classroom appear to be that he was completely aware of what teaching actually involves, had no classroom management skills, and was placed in a "sink or swim" environment. His story's old, but it probably merits a more thorough and sympathetic examination in a future post.

3. Will's editorial continues with more "horribles", some of which are, well, judge for yourself:

In Indiana, a boy did what boys do: He went down a slide headfirst -- and broke his femur. The school district was sued for inadequate supervision. Because of fears of such liabilities, playgrounds all over America have been stripped of the equipment that made them fun.

So... how exactly can you break your leg by going down a slide head-first? Do you suspect that, if the story has any relation to the truth, Will's again leaving out some crucial facts and context? And where, exactly, can I find school playgrounds where they've removed the slides?

Litigation Threat To A Start-Up Business

We all know the story.... A poor, struggling little multi-billion dollar company like Scotts is creating popular consumer products, when all of the suddent an unexpected lawsuit - let's say a customer eats Miracle Gro, gets an upset tummy, and claims there should have been a warning label that it wouldn't make people larger - gets a sixteen trillion dollar jury verdict and puts them out of business. Sure, the story is pure fiction, but that's what the "tort reform" propagandists wish us to believe. But let's interject some reality....

The other day I was browsing through Inc.com's "30 under 30" series, and read a profile of an interesting company - what Inc.com deems The Coolest Little Start-Up in America:

If you've browsed in the garden section of your local Home Depot or Wal-Mart recently, you may have seen a new plant food somewhere north of the begonias and south of the perlite. It comes in a yellow and green shrink-wrapped bottle with a familiar shape and the kind of spray top you might find on, say, Windex. It may well be the world's first commercial product made entirely from garbage. The plant food itself is a so-called vermicompost tea, a brew made from the castings (that is, the poop) of red worms that have feasted on various types of organic waste. The containers are reused soda bottles. The spray tops are the unwanted extras that have been dumped by manufacturers of other spray-on products. Even the boxes that the plant food is shipped in are garbage: They're the misprinted rejects of major companies.

But the most striking fact about TerraCycle is the age of its co-founder and CEO, Tom Szaky (pronounced zack-y). He is now 24. A Hungarian by birth and a Canadian by upbringing, he was 19 years old and in his freshman year at Princeton University when he launched the company with one of his classmates, Jon Beyer. At the time, they were simply trying to win a business plan competition. They came in fourth--out of the money--but they couldn't shake the idea that you could build a business selling garbage. And now, five years later, they have done just that. In 2005, TerraCycle had $461,000 in sales, mostly in Canada, where the product was carried by Home Depot and Wal-Mart as well as other chains. With the decision by both retailers to roll it out in their U.S. stores this year, the company's 2006 sales are expected to top $2.5 million.

So it caught my attention when I spotted a Marketplace story about the same company:

Terracycle claims its organic plant food is "as good or better than the leading chemical fertilizer." Tough talk for a little guy when it's obvious the company means it's better than Miracle Gro.

* * *

[Scotts is] suing to see Terracycle's plant food performance study. But Terracycle's refusing for now.*

Scotts isn't leaving it at that. It's also claiming consumers might confuse Terracycle with Miracle-Gro because of the way it's packaged.

As the story indicates, Scotts appears under the impression that it should have the exclusive right to use green and yellow packaging for gardening products - really, there's no confusing the two products - or perhaps it's just that they know how litigation costs can affect a small business:

Hemphill says big companies often use this kind of lawsuit to protect their brands and market share. That's not just bad news for the up-and-comers, its bad news for consumers too, as it can stifle competition, he says.

CEO Tom Szaky says he had to spend 30 percent of his earnings in legal fees this month — and if he's slapped with another lawsuit, it could drive him out of business

Let's see if tort reform propagandists like ATRA and the U.S. Chamber of Commerce Institute for Legal Reform step in to hold a fund raiser to help with Terracycle's legal fees....

Are you holding your breath?
_______________
* I hope Terracycle is able to substantiate that claim.

Tort Reformers Focusing On The... Big Problems?

According to a letter from Sherman Joyce, President of the "American Tort Reform Association",

Our efforts to reform the tort system address the greatest abuses, such as allowing lawsuits that do not require proof of actual injury or loss, denying the right of defendants to appeal judgments against them, and permitting pseudo-experts to peddle "junk" science in courtrooms.

The "greatest abuses".... Okay, I'll bite.

• In what percentage of cases do tort plaintiffs proceed and prevail in cases "that do not require proof of actual injury or loss"? Here they are referencing cases which involve, for example, toxic exposure, where the victim may require medical monitoring and have legitimate fear of developing an illness. Their problem with medical monitoring, in their own words, does not appear to be its present implementation, but a hypothetical future where "Widespread acceptance of medical monitoring would expose all businesses to unprecedented liability and costs." The good old dependable "slippery slope" fallacy.


• In what percentage of cases are defendants denied "the right ... to appeal judgments against them"? The only reference I can find to this on ATRA's website is its suggestion that "billion-dollar verdicts are no longer uncommon" (er, they're not?) and that some defendants facing multi-billion dollar verdicts can't afford to post appeal bonds. This happened twenty or so years ago in Pennzoil v Texaco, and since in the high profile case of... of... of... Well, don't go looking for help on ATRA's site, because apparently they don't know of another example, either.


• In what percentage of cases are tort plaintiffs and defendants free to present the testimony of "pseudo-experts" who "peddle 'junk' science in courtrooms"? (Does this actually mean something other than "It's horrible that tort plaintiffs are permitted to present expert witnesses who differ in opinion from those who serve the defense"?) Funny... this crucial issue doesn't seem to merit mention on ATRA's "issues" page.

This is how they put their best foot forward? Well, I suppose if the mainstream media is willing to print their nonsense, it works for them.

A Flint Minute....

Okay... perhaps I'm beating a dead horse (or popping bubble wrap), but....

Leaving aside for the moment the fact that I didn't know that in "Chronicling the high cost of our legal system" Walter Olson had become a Canadian, I find his math to be interesting:

Federal Express drivers Edgar Rizkallah and Kamil Issa, both of Lebanese descent, say the nasty epithets from their manager went on for two years, which means the award works out to $15 million per epithet-year, $290,000 per slur-week, or $40,000 per imprecation-day.

Well, let's see... Michael Moore is being sued for $85 million over a ten second clip. That's $510 million per Flint minute, more than $30 billion per Flint hour, almost three quarters of a trillion dollars per Flint day, $268 trillion per Flint year.... All for the pain of having people think you're "from the same background as the people in Flint"?

Oh, I know.... It's different".

He's Going After Hillary?

Walter Olson is apparently so preoccupied with Hillary Clinton that the suit against Michael Moore somehow escaped his notice.

"But This Is Different"

The bloggers of Pajamaline (f'rinstance; f'rinstance) seem to be giddy over the fact that a Gulf War vet and his wife have sued Michael Moore over a clip from NBC News that was used in Fahrenheit 911:

Damon is asking for up to $75 million because of "loss of reputation, emotional distress, embarrassment, and personal humiliation."

In addition, his wife is suing for another $10 million because of the "mental distress and anguish suffered by her spouse."

Back in the days before he was going to sue anyone, Damon's objections were detailed in the Army Times.

In [the clip], Damon is seen sitting on a gurney just before going into surgery. The remains of his arms are swathed in heavy bandages, and he is describing phantom-limb sensation and the phantom crushing pain that doctors have relieved with a steady flow of anesthesia into each limb.

The original Oct. 31 interview with NBC Nightly News was about the anesthesia and the work being done at the hospital with other amputee soldiers. Damon and his anesthesiologists considered it a positive piece that showcased the hard work being done for wounded soldiers.

But, Damon notes, the 10-second clip in "Fahrenheit 9/11" is sandwiched into a segment of the movie that describes the supposed plight of hapless soldiers sent to Iraq, many of whom, Moore asserts, have joined the Army to escape poverty.

"For this guy to put me in a movie and say, 'Look at all these poor fellows,' it makes us look like we all came from the same background as the people in Flint, Michigan," Damon said.

Damon has appeared in two films denouncing Moore and Fahrenheit 9/11, but I guess people still think he's from Flint.

There seems to be no end of right-wing applause for the lawsuit, but I have yet to find even a single critical peep from the "tort reformers"... presumably because it's Michael Moore, which means "it's different". And as it's not a lawsuit against their corporate masters, so why would they care if he faces a lawsuit of dubious validity with an absurd demand for damages. But then, we haven't yet heard from Volokh's Dave Kopel. After all, he would be the first to tell us that just because you don't like the defendant, it doesn't mean that the plaintiff should be awarded millions of dollars. Right?

Update: Another Pajamaliner chimes in: "I have no idea if the case has any merit, but I do like the idea of Michael Moore being sued." How, um, conservative.

Facts? Who Needs 'Em?

Not the "tort reformers", apparently....

Over at the Volokh Conspiracy, David Bernstein relates something he read on Overlawyered, about two secretaries who settled a sexual harassment case for $450,000.00. Bernstein comments, "the complainant's in the 'Ride Them Hard' case won a settlement, apparently largely because the school district's lawyer was thought to have mishandled the investigation, and the distict was afraid this would make them look bad before a jury.... Regardless, this might just win my vote for the most ridiculous case of the year." Elsewhere on the Internet the settlement is declared the "Outrageous lawsuit story of the year."

The news accounts which inspire all of this horror relate,

The two secretaries' claims came from a comment Assistant Superintendent Thomas J. Kirschling made to them and two others in July 2002. At some point mid-month, Kirschling said "I ride them hard and put them away wet."

The two secretaries sent him a memo saying they were outraged. He later explained and apologized, according to a subsequent memo.

Kirschling was apparently using a rural idiom that means someone is tired or worked hard. The phrase is taken from the need to cool down a horse after strenuous exercise. Only a mistreated horse is stabled while it is still sweating.

After the women complained, the district assigned an outside attorney to investigate, but that probe inadvertently lapsed.

After the suit was filed, school officials said Grosskreutz recommended settling the claims and updating the district's sexual harassment policies. The district is reviewing its sexual harassment policies.

That is, the coverage is very sympathetic to the school district and defendant, and relates their version of events qualified only by the word "apparently". Another news story relates,

At the time of the complaints, district Superintendent Fredrick Nickles said the district's affirmative action office would look into the remarks.

After the initial 2002 report, the district hired an outside attorney to research the remark, Davis said, because they wanted the investigation into a top staffer to be without taint.

However, the attorney they hired apparently did not do the work, Davis said.

"Something developed, something personal with the legal representative, and it was never reported back to the (district) administrators," Davis said. The investigation "kind of just fell through the cracks, and that later on created problems for the district because it looked like we didn't show any concern for the issue of the harassment."

Okay, so what's wrong with this picture. The School Board supposedly conducted its own internal investigation through its Affirmative Action Office, and also contracted for an independent investigation through outside counsel. When an undefined problem with the outside attorney developed, no new attorney was brought into the case.

These are the facts deemed so outrageous by the school board and its insurance carrier that they opted to settle for $450,000.00? Why am I thinking that there is a lot more to this story.

It appears that Overlawyered seeks to "objectively" relate summaries of news coverage, thereby disclaiming any responsibility for error, omission or misrepresentation that finds its way into their content by virtue of their failure to engage in any analysis or fact-checking. Given their agenda, perhaps their preference for stenography should not be surprising. But it makes me wonder why anybody takes them seriously.

A Schedule of Damages for Malpractice Cases?

One of the stranger reform proposals I occasionally hear emerge from the medical circles is the notion of a "schedule of damages" for medical malpractice cases. This ostensibly would give greater certainty and predictability to jury verdicts in malpractice cases - rather than picking a number based upon the evidence and testimony presented at trial, jurors would be asked to match the plaintiff's injuries to a schedule and award damages accordingly. Or perhaps they would simply be asked to itemize the plaintiff's injuries, and the judge would apply the schedule.

It won't fly.

Why not? Leaving practical issues aside, because it would undo the biggest accomplishment of the medical malpractice insurance companies in their quest for "tort reform" - damages caps. Think about it. Take the worst malpractice injury you can think of - let's say, quadriplegia, or leaving somebody in a persistent vegetative state, or killing somebody, or leaving somebody conscious but completely unable to communicate or interact with the outside world. Under "tort reform" measures in most states, that's worth at most $250,000.00 in non-economic damages. So what's paraplegia worth? $200,000.00? What's a single paralyzed limb, or an amputated limb worth? The loss of vision in both eyes? In one eye? $50,000.00? What if you have a combination of injuries - do you sum the damages, award only the value of the injury deemed most serious under the schedule, or... what? Can you imagine a legislature trying to foist such a schedule on the public?

As caps on non-economic damages have had no apparent effect on insurance rates, perhaps we shouldn't be surprised that doctors are looking for alternatives. And perhaps it would even be true that a schedule of damages would work better for doctors and for victims of malpractice than the present caps. But the insurance companies are not going to give up the fact that if their insured kills or cripples you, your non-economic damages are capped at a level that would be absurdly low if placed on even a modestly fair schedule of damages.

"Readers Digest Reasoning"

On another blog, I found myself in an amusing discussion over a "tort reform" advocacy site. One of the site's authors was defending the site's approach to the subject - which boils down to lifting sensational headlines from the news, and "reacting" to them, usually without delving any deeper to see if the news story contains factual error. The site's ideology means that this presentation is entirely one-sided. That is, the only type of litigation described on the site are cases the authors deem worthy of ridicule. (The author claims that there is balance on the site, for example because it has a letters section where the proponents may choose to print contrary opinions, and they occasionally link to other resources which take contrary positions.) Needless to say, this type of one-sided, bad analysis is anything but unique in the world of "tort reform".

Although more formally known as the "Hasty Generalization", I think of that type of fallacious logic as "Readers Digest reasoning" because, with no offense intended to that publication, that is where I first encountered this particular rhetorical tool, and it is one that publication has historically used with significant frequency. The proponent of a position collects a set of sensational anecdotes, and strings them together to advance a political position. If you look past the surface such an argument usually falls apart pretty quickly - the "examples" are found to be completely unrelated and isolated, and the "trend" ostensibly shown by stringing them together simply doesn't exist.

Yesterday, CJR Daily brought us an example of this type of flawed reasoning, as applied by Conservative pundits to the supposed demise of Christmas:

Stories about banned Christmas carols and employers forbidding the use of "Merry Christmas" in favor of "Happy Holidays" seem to pop up each December. Over the past few days, however, the issue has been moved front and center by a hungry press, with stories popping up in the national media almost daily, and conservative television host Bill O'Reilly running a daily segment titled "Christmas Under Siege."

But wade through the wall-to-wall coverage of the story, and it becomes apparent that there are only a handful of examples -- three, to be exact -- being recycled in article after article. Many of these pieces use the same incidents in almost the same way. Some even hit for the cycle, as USA Today did today, referencing all three stories in one shot.

* * *

When not flogging the same three stories -- two of which are essentially false -- to create the appearance of a genuine national trend, the media is busy interviewing the same outraged representatives of a few conservative family groups trying to put the Christ back in Christmas. The Alliance Defense Fund, for example, has been cited in numerous stories in the past week, as has the Rutherford Institute, another conservative group.

This is also how we ended up with the notion of the juvenile "superpredator", and ended up as a nation spending hundreds of millions of dollars on "punk prisons" in an era of declining juvenile crime. This type of nonsense frequently gets repeated, without any apparent level of thought, by our nation's media. Because it is so sensational?

"The Madison County Shill"

CJR Daily brings us a story from the world of "tort reform":

The Washington Post reports today that the U.S. Chamber of Commerce has created a newspaper, the Madison County [Ill.] Record, that bills itself as a legal journal, and focuses on the unusually large number of class-action lawsuits filed in the county. Nowhere in its pages does the paper disclose that it was created, and is in part owned, by the Chamber.

Do you suppose that they added the associated cost to their budget because Edwardsville look so pretty and they want to help out the economy of small town America?

... But It Will Be More Fair, Right?

With little regard for the facts, the mechanics of the legal system, or how their own "tort reform" lobbying efforts have contributed to the situation, it is not unusual to hear doctors complain that malpractice cases should be taken out of the court system and shifted into a non-adversary, fact-finding system where lawyers play a smaller role.

The actual deficits of the tort system should be acknowledged, and to the extent possible we should work to rectify them. But as the L.A. Times indicates in its discussion of various travesties of justice which have occurred under the federal Vaccine Injury Compensation Program, in some situations the type of "cure" demanded by these doctors is significantly worse than the disease.

(Thanks to mythago for bringing my attention to the article.)

The Flu Vaccine

One of the prevarications that Bush is presently spreading, to avoid taking any responsibility for the flu vaccine shortage, is that vaccine manufacturers are afraid to produce the flu vaccine because of litigation. Fascinating, then, that we have no shortage of, say, DPT vaccine, MMR vaccine, chicken pox vaccine, polio vaccine, hepatitis vaccine... heck, even yellow fever vaccine.

It is also interesting that, not being aware of any litigation over the flu vaccine, all I could find on the Internet were a handful of apparently unsuccessful lawsuits - three between 1976 and 1990 - alleging that the flu vaccine caused Guillain-Barre Syndrome (a form of peripheral polyneuritis characterized by pain and weakness and sometimes paralysis of the limbs, cause unknown).

Meanwhile, why no mention of the National Childhood Vaccine Injury Act, or the Vaccine Injury Compensation Program, which have removed most vaccine-related injuries from the courts?

So it does not appear that there is any appreciable litigation over the flu vaccine, some very effective "tort reform" measures are already in place to protect both manufacturers and consumers, so... could Bush be "making stuff up"? Um... yeah. that would be it.

Things I "Learned" In Law School

Over on mythago's blog, there is a brief discussion of the insurance industry-sponsored venture known as "tort reform", and the extent to which the insurance industry distorts facts - or just plain fabrications - in their effort to advance industry-friendly litigation. A couple of example fabrications, described in the Washington Monthly, brought back fond memories of law school....

In 1977, the venerable insurance company Crum & Forester sponsored one of the first print ads that included what would become a staple of anti-lawsuit rhetoric: the fictional lawsuit horror story. The ad told the story of a guy who collected a $500,000 jury verdict after he was injured using a lawnmower as a hedge clipper. The agency later conceded that it had no factual basis for the story, but that didn't keep it from circulating widely in the media and in conservative political speeches.

More than ten years later, my torts professor related this story as being about a man who had cut off his thumbs while using a lawn mower as a hedge trimmer. (Think about that for a minute - even if you were to try to cut a hedge with a lawn mower, how could you hold it such that it would be your thumbs which were injured?) A quick Nexis search confirmed the story to have been a fabrication. Another example came from a different professor, I believe in Civil Procedure:

Back in 1986, [60 Minutes] profiled the owner of a ladder manufacturing company who claimed his company had been hit with a $300,000 jury verdict in a suit by a man who fell off a ladder because he set it in a pile of manure. The business owner claimed the lawsuit alleged the company should have warned buyers of the dangers of setting ladders in dung. The real lawsuit had nothing to do with manure; the ladder had broken with less than 450 pounds on it, even though it had a safety rating that said it could support up to 1,000. Tedesco says the show never ran a correction.

That story, also, was recounted as fact.

Another portion reminded me of a recent effort to discuss issues of malpractice with doctors. One kept bringing up the claim that the medical industry wastes $100 billion per year on "defensive medicine" - never mind that not one doctor in the discussion would admit to having ever engaged in defensive medicine, and not one could explain why an HMO or other managed care organization would pay for medical care it did not deem necessary. One claimed that an example of "defensive medicine" was the provision of pregnancy tests to infertile women before certain radiological procedures - although, given that infertile women cannot conceivably suffer fetal injury, it is not at all apparent how this could be classified as "defensive" as opposed to "stupid" or "profit-maximizing". Obviously, if we include profiteering and stupidity in the definition of "defensive medicine", it will be possible to derive an exhorbitant price tag. But generally, it is easier to just fabricate the price, and get it embedded in the public consciousness:

Take the idea of a "tort tax," the financial hit allegedly taken by every citizen because of the legal system, which Taylor raised in his December Newsweek article. It dates back to 1988, when Manhattan Institute fellow Peter Huber coined the term in his book, Liability, and claimed that the tort system cost Americans $300 billion a year. Three years later, the figure made its way into a speech given by Vice President Dan Quayle, who blamed lawyers for wrecking the economy. After the speech, several researchers examined the methods Huber had used to arrive at that figure. Huber, they found, had simply made it up. As The Economist observed in 1992, "the $300 billion figure has no discernible connection to reality."

What was also interesting was seeing that the doctors had no conception of the actual cost of medical malpractice, which the insurance industry estimates at 2 - 3% of the health care dollar, subject to being reduced by approximately 0.4 - 0.5% if all current "tort reform" measures are implemented. And the current "reforms" would have no effect on "defensive medicine", because they are uniformly aimed at limiting the recovery of the most injured victims of malpractice in the most meritorious cases.

Meanwhile, the same doctors who obsessively whinge about trial lawyers, malpractice liability, and the "need" for the tort reform measures which will "save" at most a half-percent of health care costs... yawn at the notion of eliminating bureaucratic inefficiency that results in the outright waste of 10 - 20% of every health care dollar.

My own experience supports the article's observation that most tort recoveries are small, and many tort victims are undercompensated. I also have experience receiving inquiries from people who have come to see the tort system as a slot machine, where an inconsequential or effectively self-inflicted injury can return millions. This, as the Washington Monthly points out, is an impression created largely by the insurance industry's own, decades-long disinformation campaign.

Some academic researchers suspect that all the hype about the litigation crisis might actually be making Americans more litigious by giving them the erroneous impression that compensation is available through the courts for most injuries. As McCann says, "Tort reformers may have produced more frivolous claims while making legitimate claims harder to bring."

"Bad Baby" Cases

That sounds a bit strange, right? Maybe it has something to do with a small child who won't behave? Actually, it's lingo that some lawyers use to describe malpractice cases involving birth injuries. Realizing that most professions at times use expressions that are a bit unseemly, I can't get used to that particular example.

There are cases of obstetric malpractice which are truly appalling. But, as everybody knows, not all birth injuries are the fault of the doctor. And there is validity to complaints about lawsuits being filed over alleged birth injuries when causation can't be made more certain than a coin toss. Very few lawyers engage in this type of litigation - on the one hand, fortunately, there aren't that many cases to be litigated in any given state; on the other hand, it is far too costly a gamble for those who can't afford to specialize in this type of litigation. Very few attorneys can risk $100,000.00 or more in up-front costs on a coin toss. And, although doctors may argue otherwise, very few attorneys would want to engage in this type of practice.

The way it works is this: there's a birth case, where the baby has a serious injury that might be a birth injury, or it might be a congenital disorder for which the doctor has no fault. The medical evidence is equivocal - so the defense hires "experts" who testify that it was congenital or was an unavoidable consequence of birth, and the plaintiff hires "experts" who argue that the injury was caused by medical malpractice. The same experts often make a very handsome living from their testimony alone, be it for the malpractice insurance carrier or the plaintiff. The jury is then asked to pick a side by a "preponderance of the evidence" - which is why I referenced the coin toss. Whether one side persuades the jury that the plaintiff only proved a 49% likelihood of malpractice or a 51% likelihood of malpractice may turn more on external factors - such as whether the defendant doctor seemed arrogant when he testified, or whether the plaintiff came across as a greedy opportunist - than on the evidence.

If the lawyer wins one case out of two, the strategy is a big-time moneymaker.

There's another side to this type of litigation. It is this paradigm which is used as the rationale for sweeping "tort reform" measures which are designed not to make the jury's fact-finding more accurate, or to prevent the filing of "frivolous suits", but which are aimed directly at the most seriously injured victims of malpractice. The cry is that "obstetricians and neurologists pay too much for malpractice insurance", with the illogic that this necessarily means that all doctors should thus receive broad protections from liability for their mistakes - no matter how egregious the physician's conduct, and no matter how severe the patient's injury.

I'm all for hearing proposals from physicians on how to make the birth injury situation more fair. (Or, for that matter, the somewhat similar situation for neurosurgeons, who may end up being sued as the result of a horrific maloccurrence - a fancy word for a 'bad outcome' - from a high risk surgery, even in the absence of malpractice.) But when it comes to making the system better, doctors and their lobbyists are almost universally silent. They instead want to arbitrarily limit the damages received by the most seriously injured victims of malpractice, in the most meritorious of cases. That's at least as immoral as going to court on a coin toss over a "bad baby" case.

Revitalizing the Economy

In an unsigned editorial (and who would want to sign it), the Washington Post presents a rather peculiar essay on economic growth.

What could President Bush do to boost growth? His officials argue that tax cuts will contribute, but this seems unlikely. Lower tax rates on wages do boost the labor supply; lower tax rates on investment may boost savings; more labor and more capital mean more economic output. But Mr. Bush's tax cuts also have an offsetting consequence. Because they have not been accompanied by spending cuts, government borrowing has gone up, nudging everybody's cost of borrowing higher than it would be otherwise.

Wait - you mean, interest rates have been higher for the past few years than they were in previous years, such that the cost of borrowing has increased? How did I miss that.... If only those darned interest rates had come down, we could have had a true economic miracle, like back in the 90's when interest rates were, um, higher.

Needless to say, I also liked this:

Another option is to tackle the absurd tort system, which claims a far higher share of GDP than in any other advanced country. Reform, if it ever could pass Congress, would boost growth by reducing litigation costs, freeing money that might fund innovation and research, and -- by reducing companies' propensity to withhold products from the market -- eliminate the needs to order unnecessary safety tests and waste time on defensive strategies that are more about reducing legal exposure than about safety. But how much extra growth would this yield? Robert E. Litan of the Brookings Institution puts the answer at just 0.1 percent of GDP per year.

Our "absurd" tort system is based on the common law tort system, which exists in other nations including England and Canada. The biggest difference is not that the system is "absurd" here and somehow not "absurd" in those other nations - it is that those other nations have national health care plans, and thus verdicts and settlements don't include large sums to cover future medical care. As for this pretended reluctance of companies to release products to the U.S. market... what, exactly, is available in Canada and England that manufacturers are afraid to sell in the U.S.? And as much as some people like to whine about it, I don't think that the pressure that the tort system places on companies to make sure that their products are safe is a bad thing - it seems to be a pretty good cost shift: from people who would otherwise be injured by inferior products, to those capable of producing safer products and preventing the injuries. Typical of this type of "tort reform" rant, there is no substance provided to back up the claims made.

And then we are told that regulatory agencies - you know, like the FDA, OSHA and the CPSC, which impose safety rules on business, industry, pharmaceutical products and consumer goods - have a negligible impact on economic growth. I'm sure Daisy Manufacturing would like to know how exactly they are more at peril from tort lawyers than from regulatory agencies. Microsoft might ask that question as well. But either way, despite its anti-tort, anti-regulatory harping, the essay concedes that neither "tort reform" nor "regulatory reform" would have any appreciable impact on economic growth.

Other suggestions? Maybe increased worker education would help. Maybe government funded research would help. Maybe "fully liberalized global trade" would help - albeit through what the author proposes to be a one-time boost in the GDP....

Sometimes it is painfully obvious why editorials are unsigned - because nobody (but the paper itself) wants to be associated with such mind-numbing mendacity.

Medical Malpractice "Reform"

The Washington Post today tells us of a crisis in insurance costs for OB/GYN's in Maryland. After endorsing a reduction of the "damages cap" for "pain and suffering" from $635,000 down to $500,000, the Post writes:

A somewhat tighter limit on awards for "pain and suffering" strikes us as reasonable but inadequate; it needs to be coupled with better provisions for protecting patients from negligent doctors and improving medical care. The goal, as we've said before, should be to protect victims of doctor error as well as victims of unfair lawsuits. That might mean tougher discipline for repeat-offender doctors, better disclosure of errors in care and closer scrutiny of hospitals to identify patterns of errors. Doctors might squirm at that, and trial lawyers might squirm at lower caps on "pain and suffering" awards. But without some compromises, Maryland's health care system may be heading for a fall.

Um... I doubt many lawyers will "squirm" over the difference between a $635,000 damages cap and a $500,000 cap, because any case worth litigating under one cap will remain worth litigating under the other. The person who "squirms" as a result of such a cap is the child who is told to accept $500,000 as compensation for the "pain and suffering" from a lifetime of disability. You never see so-called "tort reform" advocates putting a human face on the babies supposedly "overcompensated" for their very real injuries - a human face would interfere with the charade.

What the Post doesn't ask is whether part of the reason for high insurance costs comes from bad practices by the insurance companies themselves. Irresponsible financial practices which they are passing along to doctors in the form of higher premiums. The Post doesn't even stop to wonder if jury verdicts are increasing, or if there are so many verdicts at the level of the "cap" that a 21% decrease will have any significant impact on premiums. After all, even with "pain and suffering" capped at $500,000, for the most severe cases of malpractice the award for economic expenses - a lifetime of medical care, educational support, attendant care, medical equipment, and dependence - will be ten or twenty times that amount, perhaps more.

Yes, obviously there should be some attention paid to avoiding incidents of malpractice, to weeding out "bad doctors", and to otherwise protecting patients. But there are few groups which lobby on behalf of injured patients, and insurance companies have scores of full-time lobbyists working to limit their recoveries. So it might be reasonable for a legislature to consider patient-centered improvements, but it is more realistic to expect it to cater to the insurance industry.

While it is a competitor, perhaps the Post's unnamed editorialist would benefit from reading Bob Herbert's recent column, in which he took a peek behind the curtain of malpractice "reform"....

Tort Reform Distortions

The poorly reasoned editorial of the day is unquestionably "Some things I wonder about" by Walter E. Williams. First he expresses that it only makes sense to buy at the lowest price, and thus that it is perfectly reasonable for CEO's to seek lower cost workers overseas.

How many times have we heard the accusation that a corporation moved overseas to take advantage of lower-priced labor or hired cheaper-priced Indians with HB-1 visas to replace higher-priced American high-tech workers? You'd think that a desire for lower prices is somehow immoral. Why should a preference for low prices be OK for you and me, and not so for CEOs?

Needless to say, the debate is not over the merits of bargain-hunting, and Mr. Williams presents a classic example of failing to see the forest for the trees. Not so poorly reasoned yet? Don't worry - it gets better. Williams next complains that homosexuals die at much younger ages than heterosexuals, yet insurance companies don't hike up premiums for homosexuals:

After all, life insurance companies do ask applicants about other forms of behavior that have an impact on life expectancy, such as: Are you a pilot? Do you abuse alcohol and drugs? And do you have DUI arrests? Why not also: Are you a homosexual? I think I know the answer. Life insurance companies would be charged with lifestyle discrimination.

Um... perhaps it is because the "death" statistic he cites - to the extent that it is valid - is not the result of homosexuality, but is in fact the result of a certain medical condition known as AIDS, and life insurance companies most certainly do inquire about that condition before issuing policies? You would think he would know that, as he cites a source, "'The Longevity of Homosexuals,' in the Omega Journal of Death and Dying in 1994" - but somehow forgets to mention that the full name of the article is "The Longevity of Homosexuals: Before and After the AIDS Epidemic". He somehow also forgets to mention that the statistic at issue comes not from a credible source, but from a seriously flawed 'study' of selected obituaries by Paul Cameron. His other source is a reference to a study in "Psychological Reports" - coincidentally, also by Mr. Cameron. I wonder why he didn't direct his readers to even more, um, supporting material from Mr. Cameron's website, where we learn that homosexual desire is often caused by dominant mothers, rejecting fathers, excessive masturbation, and sex with animals. Yep, Cameron wrote that - and more.

And Williams isn't even done. He concludes by arguing,

I also wonder about judges. Merv Grazinski of Oklahoma City purchased a brand new 32-foot Winnebago motor home. On his first trip, he set the cruise control at 70 mph and calmly left the driver's seat to go into the back and make himself a cup of coffee. The R.V. left the freeway, crashed and overturned. Grazinski sued Winnebago for not advising him in the owner's manual that he couldn't actually do this. The jury awarded him $1,750,000 plus a new motor home. Winnebago changed its manuals. I wonder why. Anyone so stupid as to leave the driver's seat is probably also too stupid to read a manual.

Presumably he's never heard of Snopes?

He gets paid for this?

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