d_p_w_k

A bit of a rhetorical question: Is anyone concerned that Cheney's quotes during the debate regarding medical malpractice were in error?

Cheney said that in Wyoming, the liability premiums for a general practice physician had risen from $40,000 to $100,000. ACTUALLY,according to the Wyoming Legislative Service Office, the average premium was $15,322.

Cheney said almost 10% of OB/GYN's had left the practice because of med mal premiums. ACTUALLY, according to the American Board of Medical Specialties, between 1999 and 2004, the number of OB/GYN's has increased 18.1%, even though the number of women of child-bearing years has only grown 2.9% (census bureau).

mml

I think that most Americans agree that some degree of malpractice/tort reform is necessary. Both Bush/Cheney and Kerry/Edwards have spoken in favor of it. I worry about the simplistic approach that Bush/Cheney present, saying that all we need is tort reform to solve all these problems. In regards to Cheney's comments, I was not aware of your statistics, but considering all the other umm...I'll say misstatements (in defference to his office) that the Vice President made during the debate, it comes as no surprise to me.

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d_p_w_k

This administration is the proponent of The Big Lie (a la Herman Goering). If you tell people the lie enough times, and it is a big enough lie, it will become the truth.

Tell people enough times that juries are out of control and people will soon hold the opinion that juries are out of control. Then you force people to find a solution where there is no problem. As I have heard it said, "It is an antidote in search of a disease."

Sensei

Polls are indicating that Oregon's Measure 35 (which caps puntitive damages at $500,000) will likely fail. I plan on voting for the measure as it will provide at least a start in lowering premiums and preventing good doctors from fleeing my state.

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Kalibah

There have been distortions on all sides. First debate for instance" not a dime on transportation" when millions went into it ( TIME Magazine last week had the article on this).

That said- is electing a trial lawyer help? Sure the girl he mentioned in the debate was injured and the company deserved to pay, but how much???

Randomly

There already is a cap on punitive damages. Punitive damages were created to punish corporations, people, and doctors that ignore safety and protection of others in order to save money. To find the punitive damages, you multiply actual damages by 3. Every court in the nation does this. Juries sometimes ignore the instruction and award 900 bajillion dollars, but the judge always lowers it down to 3 times actual.

A good example is the girl in Edwards case. The insurance company and the pool manufacture discovered a flaw in the design that could be corrected with a single 2 cent screw and 1 hour of labor (to arrive, find, fix, and return). The pool manufacture decided that it wasn't worth the hassle to repair so ignored the danger.

The little girl went swimming in her pool and sat down on the drain. In a normal pool, the drain system would have shut down. In this pool, the suction was to the point that the girl was unable to get up. The suction kept rising until it reached a level were it sucked the intestines out of her body. It was her intestines that finally clogged the machinery and turned it off.

This little girl barely survived the incident and lives with only a few inches of remaining intestine. The jury found the company negligable, rightfully. The punitive damages plus the actual damages shut the company down. They couldn't afford to pay for her life long medical expenses nor 3 times that in pain and suffering. In retrospect, the 2 cent screw and 1 hour labor seems cheap, yet they made the choice to risk lawsuits over paying that small amount.

Edwards opponents always sling up the charge that Edwards is an evil trial lawyer that shuts down small businesses and chases doctors out of state. It doesn't stick because each of Edwards cases involve a doctor or business that needed to be closed down for the fact that they were bad businesses trading human lives and/or safety for a few cents extra profit.

Thats how the system works and thats how we want it to work. We need it to close down the unsafe and to be the champion of justice for the public and not the protector of the corrupt and the profit margin.

Journeyman

In regards to DPWK's comments on repeating a lie untill it becomes truth, I see way too much of that with Kerry's opposition. Talking points (Flooding the zone), SBVFT, the repeated "Flip flop" charge, calling Kerry's wife a "loose cannon." This idea that tort reform is needed to dampen the devastating effects that lawsuits have on our medical system, I haven't heard anything at all about it untill a trial lawyer was picked to run for the democratic VP ticket. I'd also like to bring up that Hillary Clinton may or may not have some very serious stains on her reputation, but that I don't know of any and conservatives who cringe at the thought of her simply put up derogatory "God no, anybody but HER!" kind of comments without actually informing me of what their problem is. Essentially, I've been seeing a shitload of name calling with slim to nill substantiation from Bush supporters.

All I have to do to see something bad about Bush is read news reports. All I have to do to see something bad about Kerry is watch conservatives on news channel debate programs.

balderdash111

I don't actually agree that capping punitive damages or so-called "pain and suffering" damages is\e a good thing.

Granted, some juries (more and more of them today, it seems, based on what you see in the media) take the possibility of these damages as a license to give individual plaintiffs a windfall, but should this abuse swallow the overall benefit?

Punitive damages arose primarily because some companies did a cost-benefit analysis of making their products safer and decided that they would save money by paying out for injuries rather than fixing a defect.

A famous example is the Ford Pinto - Ford knew the Pinto's gas tank could explode in certain kinds of impacts, but they did an analysis. They calculated that the cost to fix the defect was $x dollars, and that, based on the number of accidents to be expected and the injuries that were likely to result, the cost of leaving the defect as is was $y. Turns out x > y, so they left the defect as is and people died.

Punitive damages introduce a variable to the equiation, so that the cost of ignoring defect can be larger than the cost of fixing it. Without this variable, Ford would -- indeed, from the perspective of investors, should -- make the same decision as it did for the Pinto.

So, I'm not really on the "curb punitive and pain-and-suffering damages" bandwagon.

(As a side note, there is an interesting discussion to be had about the fact that, notwithstanding the possibility of punitive damages, etc., companies all over the world make these kinds of cost benefit analysese every day, and people die because of their conclusions. The car companies could make cars virtual tanks and all but ensure passenger safety in most accidents, but it would raise the cost of the car too high for it to be affordable by consumers.

Obviously, nobody is seriously considering producing a line of tanks, but these kinds of decisions are made on a smaller scale every day. Cars could have all sorts of incremental improvements for safety, but the companies don't put them in. Why not? When people inevitably die who would have lived had such-and-such safety mechanism been in place, should the company be liable for not installing it? Why or why not? If not, should Ford have been liable for not fixing the Pinto?)


EDIT:

I should note, of course, that my analysis does not really apply to the question of punitives and pain and suffering damages in malpractice suits against doctors, since they are not deciding to make mistakes based on cost/benefit analyses.

Locobot

Malpractice insurance hikes are correlated to interest rates, not lawsuit damages. So, yes I'm concerned about Cheney's distortions. I'm also concerned that this is an issue at all, seeing that it's structured around a false premise. The fact is that there are criminally negligent doctors out there who need to face consequences for their actions. Our justice system already requires that twelve jurors agree a doctor's been negligent, so we're left to quibble over a limit on the value of a human life?

pan6467

I think the whole deal with Vioxx is kind of going to test the waters.

Should people who have taken this be able to sue the maker and the doctors?

For the maker most definately, when the proof was out there and they chose not to listen.

The doctors? I look at the whole doctor thing like this. The doctors (most NOT all) get kickbacks on the drugs they prescribe. Most probably don't even care what the reactions are as long as the kickback is the right price and the drug rep treats them nice. IMO, if a doctor takes his job seriously and truly wants to help his patients then he will do what the doctors 20-30 years ago did and look at what the drug reactions are, do a bit of research (there are companies that will make these research packages for doctors) and then prescribe the med because he believes it is in the patients best interest, NOT HIS.

Also to be held accountable are insurance companies. How far does their liability go when they are demanding cheaper care, and more miracle drugs?

I think it presents a good case against the FDA in how well they research drugs before letting them out.

I'm sorry that's the riskthese parties take when pushing out these drugs.

I'm sure it will be buried and people on the GOP side will condemn everyone who believes in corporate accountability as being responsible for high insurance and idiotic lawsuits.

Just as I believe there should be corporate accountability there should be personal accountability also. If you have a cup of hot coffee and pour it on yourself and get burnt it is your fault. If you fall down a stairwell that is lit and has handles it is your fault.

If a doctor prescribes drugs to you that end up killing, paralyzing or doing more damage then good, it is that doctors and that drug company's and perhaps in some cases your insurance company's fault and they should be forced to pay.

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balderdash111

I know it looks like I am trying to hijack the thread here, but I'm not. This just happens to be a pet peeve of mine.

I assume you're referring to the woman who bought a coffee at the McDonald's drive through who put it between her legs, spilled it, got burned, and won a multi-million verdict.

Sure, looked at that way, the case seems ludicrous.

But those aren't all the facts, it's just what the media reported b/c it makes for a more colorful story.

Here are more of the facts:

1) The coffee was so hot the woman needed skin grafts on her groin to repair the damage. SKIN GRAFTS! Think of the last time you burned yourself with coffee. Was it so hot you needed skin grafts? I doubt it.

2) There is no reason to keep coffee that hot, and McDonald's knew it (they had internal studies on the issue, believe it or not) but kept it that hot anyway.

3) McDonald's had been told many times about the dangers posed by the heat of the coffee and ignored the matter.

4) (I think this last part is true, but may be mixing up cases) The coffee was so hot that it degraded the integrity of the cup they served it in. Translation: because the coffee was too hot, it weakened the cups, making them more likely to spill on customers.

Ok, so given the above, do you think the jury was right to award a hefty punitive award against McDonalds? If they didn't, would McDonalds have gotten the message?

Full disclosure: I am a lawyer, but not a plaintiff's lawyer. In fact, my clients are more likely to get sued over something like this. That said, I get irked when people complain about exorbitant damage awards when there is, in fact, some logic behind it.

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Ustwo

Must not flame.

http://www.tfproject.org/tfp/showthread.php?t=69231

Been here, done this.

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Rekna

Capping it would be bad. It just makes it that much easier for companys to be neglegent. It makes the cost benifit analysis of fixing a defect to easy for them.

There should however be punishments for frivilous law suits. Make it so attorneys can get disbanded if they file frivilous lawsuits.

balderdash111

Yes. Read the thread. Even commented in it. Other than both being about "tort reform" (though your thread seems to have almost immediately transitioned into a discussion of national healthcare/socialized medicine) not sure why you think this has been "done."

It is simply b/c the other one is your thread and you'd rather people spoke on your terms?

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dy156

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."

d_p_w_k

I am pleased that my "rhetorical" question has elicited such a heated (and interesting) discussion.

A few observations:
1. The system already punishes frivolous lawsuits. If a court determines that a lawsuit is frivolous, the plaintiff has to pay the attorney's fees of the defendant. (and by the way, a frivolous lawsuit is NOT considered legal malpractice. THEREFORE, if a lawyer files a frivilous lawsuit, he or she is PERSONALLY liable for the fees and costs of the other side. Lawyers professional liability insurance DOES NOT cover frivilous lawsuits)
2. When a plaintiff loses a trial, that does not make the case frivolous. (this is very important to remember).
3. Wisconsin, one of the "med mal crisis" states had 22 med mal cases filed IN THE STATE in 2003. The patient compensation fund, which pays out if the claim exceeds the insurance limits, makes more in interest every year than it pays out in claims...in other words it is now perpetual.
4. McDonalds...I know, we've all heard the story. Fact: McDonalds knew they were burning people but found that if they heated the coffee to 180 degrees they could get 1-2 more cups per pot. Fact: McDonalds knew industry standard was 140 degrees. Fact: They knew that anything above 140 constituted an "inherent danger" to a consumer. Fact: McDonalds defended the temperature by claiming that their coffee was not intended for consumption in an automobile, but rather was heated to 180 so it would still be hot when the consumer got home. Fact: Plaintiff spills coffee on her sweatpants. Coffee is so hot it still causes 3rd degree, full thickness burns. Fact: Judge reduced the punitive award. By the way, the jury came up with the punitve damages award by figuring out what were one day's worth of coffee sales to McDonalds.