Tort Reform

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Alan
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Tort Reform

Post by Alan »

This is the one issue I'm worried about on the Democratic ticket. Edwards of course was a trial lawyer and ATLA gives tons of money to the Dems.

Now, Kerry and Edwards both say they support setting up a screening process to reduce frivolous lawsuits, but are against punitive damage caps. Now, I'm of course approaching this from a doctor's perspective, which means premiums are what I'm mostly worried about. I think damage caps mostly help insurance companies anyway. But I'm kind of skeptical of how serious Kerry and Edwards are about reducing frivolous lawsuits, because let's face it, frivolous lawsuits make trial lawyers money because insurance companies settle out of court, and the insurance companies just respond by jacking up premiums even more. Or going out of business. Or moving out of the state into a state with damage caps.

My view is that screening is absolutely necessary. Doctors who don't get malpractice suits won against them should have premium caps. Doctors who screw up repeatedly should pay out their noses (in premiums) and/or have their licenses suspeded/revoked. And lawyers who keep filing frivolous lawsuits (not just malpractice) should be punished, through suspension or disbarment. I think Kerry says he supports this, but like I said, I don't know how convinced he'll be after ATLA lobbying pressure.

In any case I see this being a major issue nationally in the next couple years. It's already a big problem in a number of states, including Pennsylvania, where doctors are moving out or retiring because of absurd premiums. OB/GYNs, neurosurgeons, and other high-risk specialties are particularly affected. Premiums for them are over $100k, sometimes even approaching half a million dollars a year. Rural doctors can't afford to practice anymore. I've read of a 3 neurosurgeon practice that had a premium of $1.4 million. Neurosurgeons are among the highest paid doctors, but $450k per year is ridiculous. The average neurosurgeon makes ~$400k.

Now Bush wants to cap punitive damage awards but I suspect he's doing it for the insurance companies, since I've never heard him say anything about premiums. Insurance companies want to have their cake and eat it too (of course, why have a cake and not eat it? But I digress) so I think premium caps or a promise to reduce premium rate increases and/or to lower premiums are also necessary.
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Peijen
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Post by Peijen »

maybe goto a state with punitive cap and premium cap? I am sure when you are ready to practice some state would already have that in place if the federal government doesn't do anything about it.

Alan
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Post by Alan »

Yeah I'm expecting that by the time it actually affects me, one of two things will have happened: the legislation will be there, or we'll have reached a point where legislators are forced to act because of severe doctor shortages in certain states (like PA).
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skanks
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Post by skanks »

Skyrocketing costs of malpractice insurance are a problem. The implication is that frivolous lawsuits are responsible for the increase in malpractice insurance; I've not seen any evidence to justify that conclusion. Insurance companies, while promoting "reforms", have been careful not to claim that the cost of malpractice insurance will drop if limits are placed on rewards.

“It may be hard to understand why ‘tort reform’ is even on the national agenda at a time when insurance industry profits are booming, tort filings are declining, only 2 percent of injured people sue for compensation, punitive damages are rarely awarded, liability insurance costs for businesses are minuscule, medical malpractice insurance and claims are both less than 1 percent of all health care costs in America, and premium-gouging underwriting practices of the insurance industry have been widely exposed.”

http://www.annistonstar.com/opinion/200 ... 1r2351.htm

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Post by Alan »

I've seen arguments that seem convincing from both sides of the fence. Democrats and trial lawyers generally say that frivolous lawsuits aren't responsible for premium increases - it's part of the fluctuation within the insurance industry. Republicans and insurance companies say that damage awards are directly responsible for the premium increases. Both sides have plenty of studies from so-called third parties to back up their claims.

My opinion? Democrats don't want to touch the tort system, in part because they have ATLA behind them. Republicans want to change the tort system to satisfy insurance companies. Doctors have nobody looking out for their interests, and won't until certain areas of the country have severe doctor shortages. The issue isn't even the premiums, it's that doctors are refusing to practice in certain states because of the premiums.

Whatever the case, frivolous lawsuits are a waste of time and money. And even with non-frivolous lawsuits, some of the punitive damages border on absurd. I understand that pain and suffering is real, and that it should be compensated, but who's to say that my pain and suffering is worth $3 million while someone else's is worth $50 million? And also, damage awards for personal embarrassment and humiliation? That merits a separate damage award? At some point it becomes ridiculous.

Trial lawyers have created a huge market (they have to, there's so many of them) out of frivolous lawsuits.
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Alan
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Also..

Post by Alan »

Right now insurance companies can use the excuse that premiums are so high because of frivolous lawsuits. We reduce frivolous lawsuits (which we should do anyway) and the pressure goes on the insurance companies to reduce premiums to keep doctors in the state.

Of course, they'll come up with some other excuse. But reducing frivolous lawsuits is a good thing either way.
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Alan
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Post by Alan »

But I do agree that there are more pressing issues facing us for the upcoming election, even within the healthcare arena. Which is why this issue is nowhere near enough to keep me from voting Kerry.
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skanks
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Post by skanks »

Instead of debating the legitimacy of reforms in general, let's talk about specific reforms.

Many people (our president for instance) complain about the practice of awarding punitive damages and would like to see punitive damages for malpractice cases capped at $200,000. Quite apart from compensation due to property damage, punitive damages are awarded to a plaintiff solely to punish the wrongdoer for deliberate and egregious violations. Punitive damages are typically where the real big money is won in lawsuits.

People sometimes percieve punitive damages as unjust because at face value the awards to far outweigh the severity of the act. Suppose I prove in court that Verizon Wireless intentionally overbilled me a hundred dollars in an attempt to decieve me and swindle my money. Now suppose the court therefore awards me twenty million dollars, mostly in punitive damages. People then get pissed off at me because I got an easy 20 mil because the phone company misbilled me.

But what would happen if we didn't have punitive damages? I could go to court and have a chance to get my hundred bucks back, but nobody is going to risk the legal bills associated against creating a lawsuit against a major corporation over a measley hundred. Consequently, Verizon Wireless would have all the more incentive to screw people like me over. What people don't always realize is that because we have punitive damages, a strong incentive has been created for corporations to play by the rules and this provides protections for everybody.

Furthermore, because punitive damages can be so large, this allows some people who would otherwise get no legal representation the ability to gain the support of a law firm under an arrangement where the law firm absorbs all costs and is entitled to a significant fraction of the rewards. Note that the law firm will only undertake such a risk if it believes the law suit has merit (ie is not frivolous).

Under such an arrangement, the victim wins, the law firm that stood up for the victim wins, and you, me, and every other consumer in America wins through increased corporate accountability. The only people that lose are those responsible for negligence or malfeasance in the name of bolstered profits.

Consequently, you can consider me a strong defender of the status quo in regards to awarding punitive damages for medical malpractice as well as other violations. The judge must be free to award punitive damages as high as he deems necessary in order to create a sufficient financial disincentive to prevent future abuses. If we were to accept Bush's proposed tort reform which caps malpractice awards at only $200,000, then we would deprive millions of Americans of their only avenue to seek compensation after criminal misconduct or incompetance.

The lawsuit is the one big stick the little guy has against the big guy. I am skeptical of any attempt to shorten that stick or take it away.

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Post by Peijen »

Under such an arrangement, the victim wins, the law firm that stood up for the victim wins, and you, me, and every other consumer in America wins through increased corporate accountability. The only people that lose are those responsible for negligence or malfeasance in the name of bolstered profits.
I don't buy that. Company never take it up the ass when profit is on the line. It's usually the consumer that eats up the cost. The money spend on frivolous lawsuit comes from you and me. Everytime someone tries to scam the store for money and cost them 100,000, they jack up the price by 200,000 to "make up for it."

I mean, why is the health care so fucking expensive here? In taiwan you can spend about $10~$20 to get a quick check up and drugs. According to my mom, the service is better, the staff/nurse/doctors are more friendly (because they are not overworked), and it take less time.

It's expensive here because everyone wants a piece of pie, and we get fucked up in the ass for it.

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Post by Jonathan »

We need a single payer health care system, like the rest of the fucking civilized world, so that tort reform is not necessary for doctors to continue practicing.

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Post by Alan »

skanks wrote:The judge must be free to award punitive damages as high as he deems necessary in order to create a sufficient financial disincentive to prevent future abuses. If we were to accept Bush's proposed tort reform which caps malpractice awards at only $200,000, then we would deprive millions of Americans of their only avenue to seek compensation after criminal misconduct or incompetance.
Well, it's usually the jury that decides the amount isn't it?

I agree that the possibility of lawsuits is a powerful deterrent against misconduct/incompetance. As I said, I'm not too sold on damage caps quite yet - though I believe that in some of the states with damage caps insurance companies responded by immediately lowering premiums. Not all did, some actually raised premiums I think.

With studies that support both sides, I have to think about it in common sense terms. When insurance companies have to deal with frivolous lawsuits, are they going to just swallow the associated costs? No, they'll raise premiums to compensate for it. If a doctor loses a malpractice suit, what do insurance companies do? Raise his/her premiums. If the doctor decides he or she can't afford to practice anymore with the increased premiums? Does the insurance company just swallow that cost too? Of course not, they'll raise premiums across the board. They're businesses after all, it's to be expected.

Ideally, the tort system keeps corporations and health-care providers from committing misconduct and gross negligence. But nowadays there are too many trial lawyers - graduates of lower tier law schools almost have no other option than work 80-100 hours a week for low pay with the hope of landing a jackpot lawsuit for their firm. The problem is that trial lawyers can (and have) created a market for themselves without much oversight.
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Post by Alan »

Dwindlehop wrote:We need a single payer health care system, like the rest of the fucking civilized world, so that tort reform is not necessary for doctors to continue practicing.
Yes. Bush's idea to have HMO's compete for Medicaid has already failed miserably in several states. Competition works for industries, not for health insurers.

I think for-profit health insurance is just in general a bad idea. There must be a reason why we're *1 in health-care spending but are *37 in actual health-care.
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Post by skanks »

On a tangent, our household recently recieved a carefully worded letter from somebody trying to pass himself off as a lawyer without actually saying so. The author claimed his "client" is seeking recompense for a past unpaid amount of $177.72 and that, if we paid up immediately, further legal action could be avoided. The author didn't even list who his client was, nor did it list a reason his client felt he should be compensated. What a great scam. I'm pretty its not even illegal.

Regarding tort reform: the American Legal System generally works. I'd say it works at least 19 out of 20 times. Given the truly immense costs of a lawsuit, frivolous lawsuits are highly unprofitable since they have almost no chance of success. I just don't buy that our Court System is so unjust that it is routinely giving unfair awards to unworthy plaintiffs. There have been a few highly publicized fiascos; our system isn't perfect, but, unless you have evidence to the contrary, I don't believe costs due to frivolous lawsuits are stifling the American medicine or the economy.

Also we already have protections against frivolous lawsuits: we have grand juries that filter out bad claims before they go to court, and the judge can sometimes summarily dismiss cases. What additional protections do you think would do more good than harm?

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Post by Alan »

The cost from frivolous lawsuits don't come in court, because by definition frivolous lawsuits probably wouldn't win in court. But in order to avoid publicity and an extended trial they'll settle.

This is what I want to see:
John Kerry's approach to the current malpractice crisis will:

* Require a qualified specialist to certify that a case has merit before it can move forward.

* Require non-binding mediation in all malpractice claims prior to proceeding to trial.

* Impose sanctions for frivolous or unwarranted claims.

* Oppose punitive damages - unless intentional misconduct, gross negligence, or reckless indifference to life can be established.
(from http://www.johnkerry.com/communities/doctors/plan.html)

A judge and/or grand jury, as knowledgeable as they may be, don't have the training to distinguish between a bad result that arises despite a physician's best efforts and plain negligence.

Now, if Kerry does all that, I'll be perfectly happy. I just doubt that it'll actually happen.
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Peijen
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Post by Peijen »

Alan wrote:The cost from frivolous lawsuits don't come in court, because by definition frivolous lawsuits probably wouldn't win in court. But in order to avoid publicity and an extended trial they'll settle.
Not really, the actual cost is court preparation. I read an article somewhere it mentioned a top tech company (forgot which) spend millions of dollars in last few years just for it's lawyer to goto court.

If I am a big corporation say WalMart, and 500 people file suit against me at $10,000 cost before we actually goto court (research, negotiation, publicity). That's $5million right there.

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Post by Jason »

Dwindlehop wrote:We need a single payer health care system, like the rest of the fucking civilized world, so that tort reform is not necessary for doctors to continue practicing.
What do you mean by single payer health care system?

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Post by Jonathan »

http://www.pnhp.org/
Specifically, we believe that a single-payer system (where the government finances health care, but keeps the delivery of health care to mostly private control)...
http://www.amsa.org/hp/sp.cfm
What is Single Payer Health Insurance?
A general definition would be the financing of health care expenditures for a nation's entire population through a single source, presumably the government, with funds collected through progressive taxation of citizens and businesses. It is important to differentiate between the terms, 'single-payer insurance,' 'socialized medicine,' 'managed competition' and 'universal health insurance.' 'Socialized medicine' refers to the direct government ownership of hospitals and clinics and control over the daily operation of the health care industry. This differs from single payer health insurance where the government collects and distributes money for health care but interferes minimally with the actual practice of medicine. Some form of social medical insurance exists in every European and Pacific rim nation as well as Canada, Australia and New Zealand. In fact, the United States in the only nation in both NATO and the twenty-four nation Organization for Economic Cooperation and Development (OECD) that does not extend medical coverage to all of its citizens.

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Post by Jason »

Oh. I would probably leave the united states if they implemented some kind of single payer health care system. Most of the ones I've seen are quite bad. I have a lot of family in Canada and their health care system sucks ass. My aunt broke her ankle a few years ago and it was faster for her to mail a copy of her x-rays down to my dad to look at and tell her what to do then to wait for a doctor to look at it up there. (They were apparently backlogged by a week).

From what I've read, the norweigian system is not that bad, but then again they take 75% of your pay check and that isn't very equitable. I think the current system in the US isn't that bad. I have about five choices of insurance ranging from 5 bucks a week to 50 bucks a week through my company. I've got the 7 buck plan because I don't think I'm going to get that sick anytime soon, but also I have a decent savings nest egg in case I do. If I couldn't handle the risk or if I had kids or something, I would go with the more costly plan.

There's obviously other aspects of this discussion that we could go into. For instance, I would rather have doctors with a wide spectrum of skill levels rather than a homogenized mediocre skill level in a socialized system. Also, I would rather just pay for my healthcare, rather than the healthcare of my chain-smoking, obese neighbor.

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Post by Jonathan »

The current state of my and your health care is acceptable right now because of the private insurance we have through our jobs. If Intel were to embark on a major downsizing tomorrow and fire me, which they could because I am employed at will and have no contract or union, I would no longer have access to that insurance, nor would I be able to afford it because Intel subsidizes the majority of the cost of my health insurance as an employee benefit. The fact that I gain or lose access to doctors as a result of my access to my job is ridiculous. The two should not be correlated. I think it's a basic human right to have access to health care (the "Life" bit of "Life, Liberty, and the Pursuit of Happiness").

Most doctors, to the best of my knowledge, won't accept a patient that does not have health insurance. Some of the teachers who worked at the preschool where Amber worked could not afford the health insurance offered through their jobs, because the preschool did not subsidize the cost at all. These were people with fulltime jobs who paid for their own housing, and whose incomes were above the poverty line. If they had medical problems, they either hoped it went away or sought emergency room care.

You may not want to pay for the healthcare of 100 million obese Americans, but there's not any mechanism I'm aware of that ensures a minimum level of health care for everyone other than government. We can't leave this to market forces because the cost of human suffering cannot be accounted for.
Last edited by Jonathan on Sat Jul 17, 2004 6:45 pm, edited 1 time in total.

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Post by Jonathan »

Also, why should the cost to you rise simply because you're paying a tax instead of insurance?

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