A medical error, a life of pain: Why tort reform is a horrible idea

[kanrok]

When Eric Hedgepeth was 17, he had an appointment to have his tonsils removed. A relatively simple surgical procedure went terribly wrong, resulting in Eric being permanently paralyzed and in need of round-the-clock care. In existence at the time of Eric's surgery was a "cap" on all damages a person could collect from a doctor who committed malpractice, even a person like Eric, who was rendered catastrophically injured. The "cap" was for a total recovery of $1.7 million dollars. A fraction of the medical care costs for Eric. Now the State of Virginia is considering a "cap" within a "cap" of $250,000 for all non-economic damages a person could collect. Hundreds of white-coated doctors will march on Richmond to protest rising medical malpractice rates (which ironically increased, up to five-fold, in a state with one of the most extreme "caps" on damages). These doctors will lobby the legislature to further limit the rights of patients like Eric. What a shame.

Link to story:
http://www.discoverrichmond.com/servlet/Satellite?pagename=RTD%2FMGArticle%2FRTD_BasicArticle&c=MGArticle&cid=1031773420365&path=%21news&s=1045855934842

[PA Democrat]

1. Republicans Hate Trial Lawyers and Juries

This whole issue boils down to the fact that Republicans hate trial lawyers because they are big contributors to the Democratic Party. They hate them until they need one themselves, like Rush needs Roy Black.

They also think that a jury comprised of American citizens can't be trusted to determine economic damages. They don't trust juries... until they need one to impose the death penalty!?!

[kanrok]

3. Welcome to DU!

Good point. Especially with reference to George W. He has absolutely no problems trusting a jury to make a decision to take a person's life, but boy, oh, boy, don't try to take a dime from a contributor. That's just plain wrong!

[SharonAnn]

13. They hate them because companies can't get away with

everything they want to get away with. They get sued for defective products that cause injury or death.

Yet, they're quick to sue when it suits them. Rick Santorum's wife sued a chiropractor for something like "pain and distress" and won over $300,000 punitive damages. However, Rick would deny anyone else that right. She wasn't working outside the home for pay so there were no economic damages.

Republican, they name is hypocrite!

[burythehatchet]

30. I too hate juries, and I'm not a republican.

You know what would be an interesting study for you to undertake? Conduct an analysis of the correllation between jurisdictions that have lorreries, and also have a reputation for runaway jury awards (Cook Dade Broward). I'm gonna guess that you'll fimd a positive and strong correllation. When juries see jury verdicts in a similar light as lottery winnings, the system will remain screwed.

Here's another question...would you feel the same way under a universal health care system that was 100% tax supported?

[Alopenia]

33. I think the problem is the huge fees these lawyers charge

on the backs of the unfortunately people they represent. People might not look quite as askance at trial lawyers' motives if their share in the jury awards were not quite so staggering. One recent $10 million award to a pedophile victim in the Archidiocese in Boston didn't net his attorney a whopping $4.5 million. And yet this attorney purports to only care about the victim.

[pagerbear]

2. Further to this point....

The argument used in favor of these caps is rising malpractice insurance rates, but has any relationship between this rise and actual malpractice awards been shown? I think it's more likely rates are going up so insurance companies can continue to show profits and please investors, even in a bad economy.

[kanrok]

4. Precisely

The State of Virginia had a $1.7 million cap on all damages, no matter what the injury is, and they have an malpractice insurance "crisis" on their hands. I feel for doctors (the vast majority of whom are caring, decent people) because they are squeezed ina number of ways by insurance companies and the government. I wish they would apply a scientific approach to the med mal "crisis" because it appears that they are way off base on who the real culprits in this problem are. BTW, welcome to DU.

[John BigBootay]

5. I could be in favor of caps IF--

they pertained to non-catastrophic accidents or malpractice.

[kanrok]

16. Precisely the kinds of cases not affected by caps

There is a mis perception that juries have gone wild and they are handing out money left and right. What always is left unsaid is what happens in those cases that get reported after a jury does something on the far end of the bell-curve. You NEVER hear that the judge remits (reduces) the award, and that the appellate court further reduces it, and/or it gets "settled" for much less than what the jury decides is fair. You also never hear of the cases on the other end of the bell curve (which actually happen more often) where a person gets under-compensated for legitimate injuries. Judges do have the the authority to engage in "additur" or increasing the amount of an unfavorable plaintiff's verdict, but the practical reality of the business of law, makes those cases less likely to be appealed. You would never hear what happens to these cases after the verdict because the tort "reformers" don't have an interest in letting the general public know.

[texastoast]

6. Janus-faced tort "reformers"

In the early 90s, while the defense "tort reform" lawyers in Texas were battling publicly for tort reform, secretly they funded the trial lawyers to fight against it. It is not to hard to figure out why.

And the insurers who told the doctors that if our recent Proposition 12 didn't pass (it did, narrowly), they were pulling out of Texas because they couldn't afford to do business here.

I wonder how much reduction in premiums the doctors have seen since Prop 12 passed? Anybody? Any letters from your insurers telling you that you won't have to pay so much next year?

[GOPisEvil]

7. The story of TX AG Greg Abbott

Greg is a healthy guy. Runs a lot to stay in shape. One day, horror of horrors, Greg is paralyzed by a falling tree. Greg sues. Greg wins a boatload of cash. Time passes. Greg eventually becomes Attorney General of Texas where he supports...tort reform!

I got mine, fuck you! Republicans are hypocrites on this issue. Lawsuits are evil, until YOU are the one who needs to file one. Bastards.

[PA Democrat]

9. Senator Rick Santorum another tort reform hypocrite

Rick Santorum (R -PA) has been a huge proponent of tort reform; he strongly supports a $250,000 cap. But when Santorum's wife was hurt by a chiropractor, they sued for $500,000.

http://www.post-gazette.com/headlines/19991211rick2.asp

[burythehatchet]

8. Who pays?

Really...who pays? Surely you understand that ultimately, all cost of doing business is passed on to you. An insurance company is simply a financing mechanism. An insurance company will always try to suck as much blood out of the system as is humanly possible, but ultimately the insurance company's role is to spread the cost across as broad a spectrum as possible.

I understand the sentiments of most people here. But I've spent 22 years analysing this issue and the bottom line is that large jury awards do nothing except reallocate precious health car resources. What good does it do anyone when a family gets a $20 million judgment? As far as the insurer is concerned it just goes into the formula. Your cost increase pays for it after all.

In my opinion there should never be a cap on economic damages. But non-economic damages must be capped, and a mandatory arbitration system established. 55% of every dollar paid in to finance the malpractice system goes to attorneys (plaintiff + defense).

[gulfcoastliberal]

12. Disagree

"Outrageous" jury awars are always appealed and invariably reduced to a sensible amount. During the stock market bubble, insurers reduced rates to ridiculously low levels and there were no complaints about premiums. When the insurance comapnies investments went south with the market, they immediately jacked up premiums, blaming the problem on "frivolous litigation", hiding the truth about their poor financial management. $20 million dollar judgements are always reduced on appeal, and usually settled out of court. California has had caps for years, and it doesn't stop steadily rising malpractice ins premiums.

edit for spelling

[burythehatchet]

15. The 100 million awards are reduced to 20 million

but please believe me, 20 million is no longer a "big deal". I know from first hand experience

[PA Democrat]

17. Sorry, but anecdotal stories are not PROOF of "runaway jury awards"

Actually insurance company payouts have been stable over the past 15 years. Check out this study:

http://insurance-reform.org/StableLosses.pdf

Specifically, check out Exhibit 2 "Per Doctor Premium and Losses"

[burythehatchet]

26. See post above...I've been involved with this issue for 22 years

I've cut the checks my friend. Ain't nothin anecdotal about them. I can make any study say anything I want.

[Taeger]

25. Limits aren't the answer

The answer is rules that penalize lawyers who bring blatantly frivolous lawsuits.

[burythehatchet]

27. Agree 100% with your point. We've been pushing for that for years

unfortunately, the reverse is what we find in some states. An offer of judgment sets up a crapshoot for defendants who end up footing the plaintoff's bills if you have any chance of losing a verdict.

There are also plenty of cases that DO NOT has any basic justification of the awards. Further, if the punitive elements were plowed back into some aspect of the health care system, it could be more palatable. Rather, what we have to endure are awards that have no link to economic loss.

[Yupster]

29. It does the lawyer good

if he gets a third of the $ 20 million.

I'm now involved in my fourth class action suit, and so far in the first three the only people who got anything were the lawyers.

[gulfcoastliberal]

10. Splendid Examples of Thuggery Hypocrisy

Listed above. Just more corporate ass-kissing by the thugs, other examples include jettisoning Kyoto, pollution enforcement by the EPA, overriding "state's rights" if a state opts to hold corporations accountable for things, etc, etc. I really wish our fellow countrymen would wake up and smell the garbage. How the repugs have managed to co-opt working class Americans is beyond me.

[ProfessorGAC]

11. They Ought To Be Marching On. . .

. . .the HQ's of the insurance companies. The problem, when using the data, shows the problem to be that these companies underestimated the risk from the California wildfires in the last 5 years, the impact of the hurricanes that made landfall the last 4 years, and the 9/11 costs which they simply had estimated at or near zero.

In addition, the overfunded their investments with stock and underfunded in bonds, so they lost tremendous value when the market took a dive.

So, because of their poor risk modeling, and investment mistakes, they went after the most convenient targets and that was healthcare professionals and hospitals. They didn't have a choice in whether they'd carry the insurance or not. So, raising premiums was a sure way to increase cash flow.

The doctors have now bought the damages lie, hook, line and sinker. The problem isn't the awards. The problem is the premium. The insurance are charging higher premiums than they need to be balance the potential risk with their profit margin.

They screwed up in one area of underwriting and now want others to cover their mistakes.

The doctors have completely misanalyzed this situation.
The Professor

[SharonAnn]

14. There still are bad doctors practicing, who should be removed,

but the doctors still protect too many of "their own".

I would think the doctors would want to take care of this since it directly affects them.

[Lone_Voice]

18. Making someone a millionare...

...does not solve their problems or make medical mistakes go away.

Jury awards should be limited to medical expenses and a reasonable amount to replace lost wages. For example, if this 17-yr old went on to earn an inflation-adjusted average of $45,000 a year for the next 45 years (until he was 62) the award would be around $1.8 million. Hell, lets be optimistic and say he would have made an average of $90,000 a year for 40 years...that only comes up to $3.6 million.

[PA Democrat]

19. Wow, talk about callous

Imagine... a married mother of 2 is incorrectly diagnosed with breast cancer, has a mastectomy, undergoes months of chemotherapy, and then finds out that someone mixed lab results and she never had cancer to begin with. (actually you don't have to imagine this scenario because it really happened) If this woman is a stay-at-home mom, according to your formula she gets nothing?

Or imagine you end up paralyzed from the waist down because of a defective product that a company continued to sell even though it KNEW that their product was defective and had caused similar injuries (another true story). You can no longer enjoy skiing, having sex with your spouse, and a host of other of life's pleasures, but because you can still earn a living, you get the cost wheelchair and a ramp to get in your front door?

Sounds like a "compassionate conservative" approach to me. No thanks.

[burythehatchet]

28. Why do you insist on framing the debate as an "all or nothing" equation?

There is a happy medium that generates the MAXIMUM societal good.

[PA Democrat]

31. Please see which post I was responding to

I responded to the guy who insisted that awards be limited to medical expenses and economic losses.

[Lone_Voice]

34. Again...

making someone a millionaire does not solve their problems. When does the suing stop? Does the spouse get to sue because they can no longer have sex? How about the kids for not being able to play catch? What about the parents for not being able to help them when they get older? What about...what about...what about...

It never stops.

As far as the non-wage earning question you pose, there should be an arbitrary amount the same for everyone with a particular type of injury, adjusted for inflation, that the person would receive.

[tkulesa]

20. This is rediculous

Let's assume that someone is completely disabled. They're in a sh*tload of pain and they can't take care of themselves. They how have a whole lot of extra expenses for life solely because of their pain and disability that are not medical expenses.

The cost of houseing goes up because you can't live just anywhere with wheelchairs and other medical equipment.

The cost of living goes up because you need someone to cook every meal for you, clean your laundry for you, keep your home clean for you. This is above and beyond the 24/7 nursing care that would be considered a medical expense.

IF you are able to have any type of entertainment in your home it might be more expensive because adaptive equipment for people with disabilities isn't cheap.

The cost of transportation to actually go anywhere is prohibitive in most cases.

I have a minor mobility impairment and chronic pain. I estimate that it costs me a minimum of $4,000 per year. This is for a minor mobility impairment and a controlable level of pain. I can still do almost everything for myself.

So if I became completely disabled because of someone else's mistake, it sure as hell should cost them more than what a fully healthy, non-disabled person could be expected to earn. Otherwise, you are condeming that person, not only to being disabled, but also to a low standard of living. That's just rubbing salt into the wounds.

[BoB Bonnet]

22. Why have Doctors at all?

There is a reason they call it the "Practice of Medicine", But honestly would you rather be in the former Soviet Union where a Doctor made as much as Janitor? Medical school and nursing program enrollments are at an all time low...Law schools on the other hand are filled to overflowing...Makes you wonder.

[Lone_Voice]

35. Should...

the person be entitled to a higher standard of living than before?

Just asking, because it seems like everyone wants to "make someone pay". If a company or individual is liable, then yes, they should pay medical costs associated with the injury FOREVER.

BTW...I know cost of living goes up...hence the need for inflation adjustments to the reward.

[snippy]

23. The 17 year old did not recover enough to pay his medical bills,

let alone any damages for lost future earnings or pain and suffering. How very republican

[snippy]

21. The need for tort reform is total republican bullshit.

I always ask those who claim tort reform is needed whether the absence of tort reform is the reason that the US has never been able to prosper economically or compete internationally. They just sputter.

I also point out that damages for pain and suffering are compensatory damages, not punitive damages. A claim for compensation for injuries is a property right. When the government limits your right to recover compensatory damages it is taking your property without due process. This causes some conservatives to actually think rather than just regurgitate what they have been told they are to believe.

Finally, I point out that such limits on compensatory damages are just another one-size-fits-all government solution. There is a huge difference between turning a 70 year old man into a cripple for life and turning a 7 year old boy into a cripple for life. This also causes some to think.

The desire to limit damages for serious injury is nothing more than political whoredom and exploitation of individuals. If there was a desire to lower medical malpractice premiums it could be accomplished much more effectively by requiring any licensed healthcare provider to provide at no charge to the victim of medical malpractice with medical care needed as a result of the malpractice. Annual fees paid by healthcare providers to state licensing autorities could fund such a program. This would be much cheaper than malpractice premiums and would have the added benefit of making healthcare providers motivated to police the incompetent providers themselves.

[Taeger]

24. What do you call 10,000 trial lawyers at the bottom of the sea????

The end of consumer rights as you know it!!!! The fact is that devastating law suits keep companies a LITTLE honest. Those lawyers are there to make sure that companies don't do things that will get them sued because they have VIOLATED consumers.

[iamjoy]

32. Reform Yes, Limits No

Reform yes, limits no.
I think some one has pointed out economic damages are hard to measure. Pain and suffering isn't just a crybaby thing, when some one has suffered a trauma, they take their pleasures in life where they can and if extra money makes it a little more bearable...

We also forget about punitive damages. Doctors should do a better job of regulating their own and it should be easier to get unbiased ratings on medical providers.

And think about this, after capping medical malpractice non-economic damages, the insurance companies and Republicans will move on to product liability. As it is now, sometimes it is less expensive for companies to break the rules and pay the fine than to spend the money complying with the regulation. Can you imagine how much worse it would be if they didn't have to worry about civil litigation?