Articles Posted in Malpractice Tort Reform

Interesting statistics from the Green Bay Press Gazette (and here we thought Green Bay was just a football team, not a town) today:

This from the Kansas City Star on the illusory relationship between health care costs and medical malpractice lawsuits:

Yet the push for tort reform rests largely on anecdotal evidence of the occasional large jury verdict or outrageous lawsuit. Despite the perception that “jackpot justice” has fueled soaring costs, hard data yield a much different picture.

Write an editorial about medical malpractice. Logic and reason: optional. Just write something. Check out this gem from the Miami Herald:

One aspect of the high price of health care and a lot of waste has been overlooked. That is the outrageous cost of malpractice insurance that doctors pay even if they are competent, responsible and the least likely to be sued.

I am not a doctor or married to a doctor, but I think this cost, along with the debts for their education, must be a huge burden. I do not think that doctors go through what they do to be doctors to become rich. There would be an easier way. However, I do believe that doctors order many extra and very expensive tests, not only to avoid a malpractice suit but to earn extra money to pay for that huge insurance cost.

Yesterday, on the Maryland Injury Lawyer Blog, I wrote about the clear plan doctors have of writing as many editorials as possible about medical malpractice. This editorial from Fredericksburg, Virginia fails to follow the ‘talk about defensive medicine’ talking point because the author is too focused on his completely insane idea for malpractice reform that no one will take seriously. But the ‘attack the medical malpractice lawyers’ part he nails at the end:

As you can imagine, the trial lawyers will fight this solution, because this process will cut them off from a very lucrative business that causes misery and inordinate medical expenses, and does not contribute anything to good medical care.

Does the author of this article believe that he converted a single person on the fence with this editorial?

In Atlanta, a trial judge found that Georgia cap on noneconomic damages in medical malpractice cases violates the Georgia Constitution.

I’m no Georgia Constitutional scholar, but the same people that believe we must strictly interpret constitutions oppose this decision without ever picking up a copy of the Georgia Constitution. The lesson as always: the Constitution is great unless I really disagree with it.

The Volokh Conspiracy has a blog post from David Hyman discussing the logic behind caps on non-economic damages in medical malpractice cases. Apparently, a Harvard Law School student writing a paper on caps asked the principal legislative sponsor of California’s (Draconian) medical malpractice cap why they settled on $250,000. This was the response:

The theory was that you could never really and adequately compensate for pain and suffering, no matter how much money you provided. Money just doesn’t do it. But $250,000 (in addition to meeting the medical and other needs of the patient), properly invested to the extent that it elevated the quality of life over and above the post-injury status, was thought to be enough to do that job.

One of the comments to the post made a very insightful comment:

If you are interested in taking a honest look at the medical malpractice problem in Maryland and around the country, Philip G. Peters, Jr’ s 2007 Michigan Law Review Article “Doctors and Juries” is a must read. The article concludes with this:

In recap, the data demonstrate that juries treat physicians very fairly, perhaps with too much deference. Given the limits of human capacity to reconstruct past events and the inevitable subjectivity of judgments about the quality of past performance, it is probably not possible to design a fault-based adjudication system that will have a substantially higher agreement rate in the cases with weak evidence of negligence. At most, modest improvements may be possible through careful refinements of trial procedure and the supervision of expert witnesses. As a consequence, both piecemeal reforms and more fundamental alternatives to malpractice litigation should not be driven by the mistaken assumption that juries treat physicians unfairly. Although the current system of resolving malpractice claims has many shortcomings, neither randomness nor favoritism toward injured patients is among them.

Medical malpractice costs comprise less than 1 of overall health costs. In 2002, medical related costs rose almost 10% to $1.5 trillion. Yet malpractice premiums expenditures were only $9.6 billion – making malpractice costs about .64 percent of national health care expenditures.

First, I grant you, this is old data. But, if anything, medical costs rising a lot faster than malpractice verdicts, which are reported to be falling in many jurisdictions (for example, Texas). Doctors claim defensive medicine costs are not included in this number. But I’ve always said I think most doctors do what is best for the patient as opposed to worrying about malpractice lawsuits. And a lot of “defensive medicine” is just good medical care.