Articles Posted in Malpractice Tort Reform

In the GOP response to President Obama’s state of the union address, Republicans went with Virginia Governor Bob McDonnell. I think he was a good choice, a blue-collar Republican with a strong appeal to conservative Democrats. We all remember Bobby Jindal’s creepy speech after President Obama’s joint session address last year (and this is coming for someone who has some admiration for Jindal).

Governor McDonnell made four points that got my attention: (1) Republicans will fight health care reform, (2) there should be limits on jury awards in medical malpractice lawsuits, (3) we are spending too much, and (4) insurance companies should be able to sell insurance coverage across state lines.

He was 2 for 4 with me. I do think our deficit/debt is completely out of control. I also think it might help control costs if we could expand health insurance coverage beyond state lines. The lack of quality competition in Maryland with Care First must increase costs and I have to think there are economies of scale to bigger. I’d like to hear more informed debate about some blind alleys I’m not considering, but this issue should be fully aired.

Malpractice lawyers often contend that malpractice tort reform would actually increase malpractice insurance rates. Coming from trial lawyers, this claim has been readily discounted by many, including me because it would seem to defy fundamental principles of economics. But when this same argument gets raised by the American Academy of Actuaries and is published in Modern Physician, it definitely lends more credence to the argument.

The legal system in general does not fall into step with general principles of economics. Nor should it. Very often, lawmakers try to tip events and end up tipping other points that send the car down the opposite path of the one that was intended.

This is not the reason why malpractice reform is a bad idea. It is a bad idea for the 1,000 reasons I have set forth on this blog and elsewhere. But if you are on the fence on this issue, this is the type of stuff you should keep in mind.

The Pop Tort underscores why a loser pay system is going to weed out a lot more than just frivolous malpractice lawsuits:

The underlying presumption is without basis and grossly unfair (i.e., because a patient loses in court, the case was somehow “frivolous.”) As the Harvard School of Public Health found in 2006, such losses merely “underscore how difficult it may be for plaintiffs and their attorneys to discern what has happened before the initiation of a claim and the acquisition of knowledge that comes from the investigations, consultation with experts, and sharing of information that litigation triggers.”

Medical malpractice lawyers in Maryland appreciate this commentary because anyone how has handled medical malpractice or any other complex tort claim knows that the relative merits of a lawsuit can rise and fall over the course of litigation. The lawsuit process assists in flushing out the merits of any case. Lawsuits – for better or worse for plaintiffs – are a path to the truth. Which is pretty much the idea in the first place.

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

    • Over the last 30 years, the number of health insurance bureaucrats has grown 25 times faster than the number of doctors — people involved in such non-health-related tasks as marketing, processing bills and denying benefits
    • In 2006, the six largest insurance companies pulled in $11 billion in profits. New medical treatments, such as coronary bypass surgery and neonatal intensive care that is saving extremely premature babies; increased use of medical services — some of it unnecessary; new technology such as echocardiograms and CT scans; and expensive drugs that often are no better than older generic drugs are significant causes of escalating health-care costs

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?

A New York Times editorial says that the “current medical liability system, based heavily on litigation, has a spotty record.”

I completely agree. The current system – our zillion year old system – for dealing with medical malpractice lawsuits does have a spotty record. You know what would be worse? Every other imaginable system.

It is curious when people attack the system because it “fails to compensate most victims of malpractice because most never file” a lawsuit. There is no way on earth to change this problem but the irony of the malpractice reform supporters pretending to be concerned that there are not enough people getting compensated is more than ridiculous.

President Obama’s mad dash for health care reform – which I think is a good thing – might lead him to take a position on medical malpractice reform that puts him in direct conflict with medical malpractice lawyers who have been major donors to President Obama and the Democratic Party.

Maryland malpractice lawyers already deal with malpractice cap (which I oppose) and thresholds to file malpractice lawsuits (which I largely support). I cannot imagine President Obama intends to put in more serious restrictions that we already have on medical malpractice lawsuits in Maryland. But the problem goes beyond just the immediate. If the president supports any curb on malpractice lawsuits, it lends legitimacy to those arguing for malpractice tort reform that they did not have before President Obama jumps off the ship, even if does not stray far from the boat.

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