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dy156 · 10-12-2004, 06:52 AM

Okay, I need to address some things here, but I will try to do so in an organized way without writing pages and pages.

1. No, not every huge judgement is reduced, and when they are reduced, it's not necessarily reduced to 3x actual damages. There are alot of variables. Punitive damage awards are very rare in med mal cases. There are good doctors and bad doctors, but very few doctors who are so stupid as to be grossly negligent. Punitive damages are for people like the doctor who carved his initials into a woman's buttocks, or cutting off the wrong leg when it was clearly apparant which leg it was supposed to be.

2. Caps on damages do not work. Texas passed massive tort reform last year, and in one sense, it was very effective. Med mal case filings dropped about 85%. So it worked, right? No, and here's why:

A. Plaintiffs' attorneys filed every single case they had waiting in the wings in August before the changes took effect in September. Some of the cases were good, and some of them were stupid, but did not go through the process of negotiations and finding good experts (necessary to have an expert before a plaintiff files a case in Texas) prior to their being filed like cases did in the past. This process disposes of some cases that just should not have been filed, but this didn't happen.

B. I have actually started seeing a couple of stupid frivilous cases being filed because the plaintiff thinks he can handle the case on the cheap. A plaintiff's attorney typically invests about $75,000, minimum per case in fees, court costs, etc... which does not include the time invested. Time is money to an attorney, and the time invested in a case is why attorneys fees are taken. With a cap on non-economic damages, the business model just does not work because after these fees are paid, and then a reasonable attorneys fee, there is not enough left to pay for medical bills or compensate the plaintiff at all for their pain and suffering if a doctor is found to be negligent. Thus, stupid cases get filed while legitimate cases that require investment do not.

C. Legitimate cases are not getting filed. I know second-hand (not third-hand) of a case in which a guy was having an operation and the anesthesiologist screwed up the anesthesia. Guy wakes up in the middle of the surgery, panics, has a heart attack on the table, remembers it all. Clear negligence. His case wasn't filed because he eventually recovered. He was retired, and so the longer recovery period did not result in economic damages, and therefore it could not be prosecuted from a business perspective. He'll never be compensated for his pain and suffering directly caused by the anesthesiologist clearly screwing up.

D. This is why the first question plaintiffs' attorneys now ask a prospective client has nothing to do with their treatment, but is "Have you missed any work?"
Tort reform became the ultimate stereotypically mean Republican way to ensure that medmal cases disappeared except for when doctors screw up on someone that makes alot of money. They can still sue their doctors.

E. (Most importantly!) Medical malpractice premiums in Texas have not declined significantly, and not declined at all in many cases. Despite the fact that there are so many fewer cases being filed, and many cases being disposed of that should not have been filed in the first place, doctors have not benefitted from reduced premiums. The only winners in this version of tort reform have been the malpractice carriers themselves.

3. Rich attorneys (generally) became rich because they are, or at least were good. When the big time attorneys will not take med mal cases, the marketplace will compensate for this and crappy attorneys will take cases and handle them cheaper. In turn, the malpractice carriers will be able to get away without hiring the best attorneys to defend doctors, and the end result will be that the med mal field will have new attorneys that don't kjnow what they're doing on both sides of the cases, with more random results. Meanwhile, good attorneys will simply find another field. Thus say some models of studies on the matter. There are good lawyers, and then there are bad lawyers. Like it or not, there are good doctors and bad doctors, too. start mixing bad lawyers with bad doctors, and you'll have problems and injustice.

4. Yes, many people in America are sick and tired of stupid cases. Guess who makes up the juries? these same Americans. This is one of the reasons why awards of punitive damages are so rare in med mal cases. Rather than institute caps on damages, the same doctors who advocate a free market response to healthcare would be similarly well served by a free market response to this problem. Take the case to the jury, and guess what? They'll start limiting awards in stupid cases, and awarding money to those who were the victims of negligent doctors. I'm pretty conservative, and would side with Ustwo on his defense of American healthcare versus nationalized care. I believe in a marketplace solution to most economic problems. Just as rent ceilings in New York have made it impossible to find apartments, caps on noneconomic damages have made it impossible for some victims of negligent doctors to find lawyers to take their case.

5. One of my solutions to the problem of medical malpractice is to open up our court system. Defense attorneys can get rid of cases that are frivilous or where the plaintiff's attorney has not done their homework before the case even gets to a courtroom on technical matters. I don't think this is right either. Nor is it right when the attorneys gets rulings that prevent the other attorney from letting the jury hear some of the facts because they might be prejucial. Let's try them all, let everything in, and let the jury decide.

6.There are other marketplace solutions. Okay, we let everything be tried, and certain specialties have to pay so much in malpractice premiums that they can't afford to stay in business. You build your house in an area that floods, and you'll have problems getting insurance, too. Some medical procedures are risky. Why can't doctors have ironclad waivers? Patients have consent forms, but that does not have the same effect. Doctors are professionals, and they generally try to do their best. They're also human, and sometimes they screw up. I think the time has come for the doctor and patient to have a contract that says "Hey, I'll try my best, but things might not work out. You agree to pay me to do this in the hopes that it makes you better, but you and your family also agree not to sue me if things don't work out." Doctors won't want to do this, because they have a god complex, and it would give the patient and their famliy peek underneath the curtain at the Wizaed of Oz. It also couldn't cover everything, like ER care, but it would be a step in the right direction.

Just as the marketplace has made our healthcare system the most advanced in the world, the marketplace could soon help us out of this medical malpractice "crisis."

10-12-2004, 06:52 AM	#15 (permalink)
dy156 cookie Location: in the backwoods	Okay, I need to address some things here, but I will try to do so in an organized way without writing pages and pages. 1. No, not every huge judgement is reduced, and when they are reduced, it's not necessarily reduced to 3x actual damages. There are alot of variables. Punitive damage awards are very rare in med mal cases. There are good doctors and bad doctors, but very few doctors who are so stupid as to be grossly negligent. Punitive damages are for people like the doctor who carved his initials into a woman's buttocks, or cutting off the wrong leg when it was clearly apparant which leg it was supposed to be. 2. Caps on damages do not work. Texas passed massive tort reform last year, and in one sense, it was very effective. Med mal case filings dropped about 85%. So it worked, right? No, and here's why: A. Plaintiffs' attorneys filed every single case they had waiting in the wings in August before the changes took effect in September. Some of the cases were good, and some of them were stupid, but did not go through the process of negotiations and finding good experts (necessary to have an expert before a plaintiff files a case in Texas) prior to their being filed like cases did in the past. This process disposes of some cases that just should not have been filed, but this didn't happen. B. I have actually started seeing a couple of stupid frivilous cases being filed because the plaintiff thinks he can handle the case on the cheap. A plaintiff's attorney typically invests about $75,000, minimum per case in fees, court costs, etc... which does not include the time invested. Time is money to an attorney, and the time invested in a case is why attorneys fees are taken. With a cap on non-economic damages, the business model just does not work because after these fees are paid, and then a reasonable attorneys fee, there is not enough left to pay for medical bills or compensate the plaintiff at all for their pain and suffering if a doctor is found to be negligent. Thus, stupid cases get filed while legitimate cases that require investment do not. C. Legitimate cases are not getting filed. I know second-hand (not third-hand) of a case in which a guy was having an operation and the anesthesiologist screwed up the anesthesia. Guy wakes up in the middle of the surgery, panics, has a heart attack on the table, remembers it all. Clear negligence. His case wasn't filed because he eventually recovered. He was retired, and so the longer recovery period did not result in economic damages, and therefore it could not be prosecuted from a business perspective. He'll never be compensated for his pain and suffering directly caused by the anesthesiologist clearly screwing up. D. This is why the first question plaintiffs' attorneys now ask a prospective client has nothing to do with their treatment, but is "Have you missed any work?" Tort reform became the ultimate stereotypically mean Republican way to ensure that medmal cases disappeared except for when doctors screw up on someone that makes alot of money. They can still sue their doctors. E. (Most importantly!) Medical malpractice premiums in Texas have not declined significantly, and not declined at all in many cases. Despite the fact that there are so many fewer cases being filed, and many cases being disposed of that should not have been filed in the first place, doctors have not benefitted from reduced premiums. The only winners in this version of tort reform have been the malpractice carriers themselves. 3. Rich attorneys (generally) became rich because they are, or at least were good. When the big time attorneys will not take med mal cases, the marketplace will compensate for this and crappy attorneys will take cases and handle them cheaper. In turn, the malpractice carriers will be able to get away without hiring the best attorneys to defend doctors, and the end result will be that the med mal field will have new attorneys that don't kjnow what they're doing on both sides of the cases, with more random results. Meanwhile, good attorneys will simply find another field. Thus say some models of studies on the matter. There are good lawyers, and then there are bad lawyers. Like it or not, there are good doctors and bad doctors, too. start mixing bad lawyers with bad doctors, and you'll have problems and injustice. 4. Yes, many people in America are sick and tired of stupid cases. Guess who makes up the juries? these same Americans. This is one of the reasons why awards of punitive damages are so rare in med mal cases. Rather than institute caps on damages, the same doctors who advocate a free market response to healthcare would be similarly well served by a free market response to this problem. Take the case to the jury, and guess what? They'll start limiting awards in stupid cases, and awarding money to those who were the victims of negligent doctors. I'm pretty conservative, and would side with Ustwo on his defense of American healthcare versus nationalized care. I believe in a marketplace solution to most economic problems. Just as rent ceilings in New York have made it impossible to find apartments, caps on noneconomic damages have made it impossible for some victims of negligent doctors to find lawyers to take their case. 5. One of my solutions to the problem of medical malpractice is to open up our court system. Defense attorneys can get rid of cases that are frivilous or where the plaintiff's attorney has not done their homework before the case even gets to a courtroom on technical matters. I don't think this is right either. Nor is it right when the attorneys gets rulings that prevent the other attorney from letting the jury hear some of the facts because they might be prejucial. Let's try them all, let everything in, and let the jury decide. 6.There are other marketplace solutions. Okay, we let everything be tried, and certain specialties have to pay so much in malpractice premiums that they can't afford to stay in business. You build your house in an area that floods, and you'll have problems getting insurance, too. Some medical procedures are risky. Why can't doctors have ironclad waivers? Patients have consent forms, but that does not have the same effect. Doctors are professionals, and they generally try to do their best. They're also human, and sometimes they screw up. I think the time has come for the doctor and patient to have a contract that says "Hey, I'll try my best, but things might not work out. You agree to pay me to do this in the hopes that it makes you better, but you and your family also agree not to sue me if things don't work out." Doctors won't want to do this, because they have a god complex, and it would give the patient and their famliy peek underneath the curtain at the Wizaed of Oz. It also couldn't cover everything, like ER care, but it would be a step in the right direction. Just as the marketplace has made our healthcare system the most advanced in the world, the marketplace could soon help us out of this medical malpractice "crisis."