What's your take on Texas Prop 12? (limits on damages in heathcare cases)

[zoidberg]

Proposition 12 would limit the amount of non-economic damgages - pain and suffering, loss of companionship, disfigurement - awarded in health care cases. There would be no cap on economic damages, such as lost wages and medical care. Proponents of the proposition state that soaring malpractice insurance costs are causing many doctors to leave the profession or curtailing the type of operations they perform. There appears to be some truth to that. But opponents of the Proposition blame protection of bad doctors by the profession as the reason for rising insurance costs. The proposition would also deny appropriate compensation for many victims of malpractice. The issue seems to have developed into a pissing contest between trial lawyers and insurance companies, with politicians coming down on predictable partisan lines on the issue.

I'm kind of torn on the issue (I'm non longer a resident of the state, so I'm not really that torn). High malpractice insurance is a problem. But this seem to be a very imperfect solution to the problem.

Some websites:

Texans against Prop 12 (http://www.texansagainstprop12.com/)

Yes on Prop 12 Committee (http://www.yeson12.org/)

A series in the Houston Chronicle (http://www.chron.com/cs/CDA/ssistory.mpl/metropolitan/2062637)

(edit for sucking at typing)

[GOPisEvil]

1. A highly imperfect solution at best.

This proposed amendment actually attempts to make constitutional a law that was passed during this last session of the legislature. I find it to be unfairly biased against the very young, the elderly and disabled, and economically disadvantaged people. Basically, if you are a high earner, your life and limbs are deemed more worthy than someone who earns less or has never worked.

[Ilsa]

3. Yeah, that's interesting.

And very frustrating.

[Ilsa]

2. I live in Texas,

Have ties to the medical community, but I am torn over this. I am worried that the results of Prop 12 could be extrapolated to distantly related services and products, and that cost-benefit analyses might really cause injury.

I'm also not convinced that hospitals need to be included. Understaffing (nursing) can lead to patient deaths, and yet after proving it could happen, a low payout could still be cheaper than proper staffing. I also don't believe hospitals when they say "competition" would prevent that, but in many places there is no competition or no real choice depending on procedures to be done.

I think most doctors are good enough to bet on, though, in terms of this Prop, because I think they really want to keep up their reputations. I am concerned about our ability to keep enough dr.s in practice. It's the corporate face that has no shame, IMO.

I still haven't decided. Thanks for the links. Maybe that will clarify it for me.

[meg]

4. Texas Democratic Women Recommendations

From the Coastal Bend Legislative Committee of TDW:

http://www.tdw.org/ReadySetVote.html

Prop 12 includes words so that the legislature can control damages in any suit. There is no $250,000 cap - it is what the legislature says it is. People only have value as far as their economic worth - seniors, children and stay-at-home parents are of no economic worth. Rich, frat boys who have nomimal, high paying CEO jobs in setup companies are worth millions.

[GOPisEvil]

5. Interesting also regarding our Attorney General...

Greg Abbott sure as hell sued the pants off the person whose tree fell on him and paralyzed him. I don't have a problem with that, but under this law, if Greg were a farm laborer, he'd get less of a settlement. Why is one life worth more than another?

Edit - of course Mr. Abbott supports Prop. 12 - the hypocrisy of Republicans is quite staggering, if not unsurprising.

[LightTheMatch]

6. Look at it this way.

If you want to stop a company, or a doctor or any other organization from doing something wrong, or dangerous, your only recourse is the court system in America.

If the court system no longer has the power to apply large enough penalties, the company, organization, or doctor will NOT stop what they are doing.

Ever see the movie "fight club?" remember when the main character is talking about his job as an insurance adjustor, and how it took a certain number of deaths/injuries for companies to actually make a change? If prop 12 passes, companies will never have to consider changing their practices, because the penalties for killing or injuring people will be too small.

[gratuitous]

7. Vote for it only if you don't much like the Constitution

I mean, that whole "trial by jury" thing is pretty overrated and why should individuals benefit from "due process" just like corporations? I'm sure that the Texas Legislature can fashion a one-size-fits-all rule that won't restrict any plaintiff's being made whole by egregious and reprehensible misconduct by any medical care provider.

[zoidberg]

8. That seems like a stretch

Juries in criminal courts are given guidelines on how to sentence guilty people. If a jury wanted to sentence a man to death for robbing a liquor store, they wouldn't be able to do it. But that hardly means that the trial system has been undermined.

[gratuitous]

11. But in a civil case

What's a meaningful penalty? For me, working and living from paycheck to paycheck, a $10,000 judgment or a $10 million judgment are basically the same: I couldn't pay either one and would be in debt for the rest of my life.

However, a doctor who carries malpractice insurance, excess umbrella coverage, and who has a personal net worth of millions of dollars might not be fazed by a quarter million dollar judgment. And who's to decide, without regard to an individual case or set of circumstances and before any evidence is presented, that a quarter million is sufficient financial disincentive for a hospital to relieve a malpracticing doctor of his duties?

There are a lot of problems with the current tort liability system. Limiting the rights of the parties injured, killed or maimed by bungling, neglect, and malfeasance hardly seems like a good place to start in reforming it.

[paulsbc]

9. any poll data

to see how it is looking on passage?

being from Texas, I'm voting yes to prop12, at the wrath of my wife and her lawyer friends :)

[LightTheMatch]

12. Awful.

Paul, I'm disgusted. Why in the world would you vote for this stuff? It's just another way to let companies get off when they do something wrong. I'm in favor of more rights for people, but LESS for corporations.

[paulsbc]

17. i know many doctors

in my neighborhood who are complete for Prop12. I trust the doctors I know much more than the lawyers I know.

[GOPisEvil]

18. What?!?!

I trust the doctors I know much more than the lawyers I know.

Are you out of your mind? What part of this are you missing? Prop. 12 is as anti-consumer protection a piece of legislation there is. Why would you be in favor of basically eliminating a trial by jury for these civil matters? Why is the life of a child or poor person less worthy than the life of a CEO?

If the insurance companies are for something, you can bet it is anti-consumer. Do some actual research before posting your opinions, please. If you had carefully weighed the options and came to your conclusion, I could respect that. But, trusting doctors more than lawyers???? :wtf:

[paulsbc]

22. i have weighed the options

and talked to the doctors i know, and my opinion is that awards are too high and need to be curtailed. One large problem with health care is massive insurance costs for good doctors, costing us all.

[GOPisEvil]

24. I submit that the problem is insuring the small % of bad doctors.

If doctors could truly police themselves, I believe their insurance rates would go down.

[gratuitous]

19. And I trust a jury

To handle the evidence presented responsibly and fairly and render a just verdict. I don't trust the Texas Legislature to sit as a kind of superjudge over trial proceedings to overturn verdicts without regard to the evidence, the circumstances, the history of a particular doctor, clinic or hospital, or the damage done to a particular plaintiff.

As I said, limiting the rights of the injured party seems like an odd place to begin reforming the system that injured him or her.

[zoidberg]

20. Do you trust juries in all criminal cases too?

I'm leaning towards 'no' much more than 'yes', if for no other reason than I don't believe the prop will lower malpractice insurance rates at all. But I find it funny that so many people want to put their full faith in the same Texas jury system that sentences so many people to death each year.

[GOPisEvil]

21. That same argument cuts both ways.

The (mostly) Republican backers of this proposition indicate that juries give out these massive settlements, so we should remove the power of the jury to do that. However, these same juries are given the power of life or death of a human being. Which is it? Do juries matter or don't they?

[paulsbc]

23. juries matter

on guilt or innocence, not damage amounts. IMO, jury amounts are often obscence and way over the top. I prefer a cap to them.

[gratuitous]

26. Apples and oranges

In a criminal case, particularly one with an economically-challenged (read: dirt poor and probably dumb as dirt) defendant, the attorneys for the defense are selected from a pool of lawyers who may or may not have any expertise in the matter at hand. A lawyer accustomed to fixing traffic tickets is hardly qualified to present a defense of a capital crime. But providing competent indigent criminal defense would cost tax money that the Texas Legislature prefers to hand over to large corporations.

Defense attorneys in civil cases, on the other hand, are hired and paid for by the insurance companies. I've worked for a couple, and met hundreds of others, including lawyers for Big Tobacco (Philip Morris). There is no comparison between these barracudas in thousand dollar suits and the folks at indigent criminal defense in terms of resources, staffing, access to experts, money, time, associates, law libraries, and just about any other criterion you care to name.

An insurance defense lawyer who nods off during a trial or who doesn't interview material witnesses or who doesn't delve into his opponent's background or otherwise doesn't cut the mustard finds another line of work. Pronto. It borders on the cliché, but I can assure you that insurance companies get the best legal representation money can buy. And they still lose from time to time.

[sandnsea]

25. How about a panel to evaluate lawsuits?

This is not just about doctors. It's also about the fact that our medical care is delivered more and more by large corporations. Do you trust them to put your medical needs first? Or do you think they might decide the cost of certain tests are more than the few deaths that would result from not doing them? We've already seen that with HMO's. What makes you think the same thing won't happen or hasn't already happened with corporate health care? The only way to stop that is large punitive damage awards, that's just the way our country runs. A panel of citizens and doctors could weed out the so-called frivilous lawsuits, allowing valid lawsuits to go forward where juries could continue to protect the people from greedy corporations.

And don't forget, insurance companies lose money from their investments, just like everybody else. They also insure companies like Enron and Worldcom. Our various insurance premiums have all gone up to cover those losses, malpractice as well.

[Liberal Veteran]

10. Don't like the idea.....

It sounds good in theory, but there are far too many variables for me to be comfortable with this.

[Ein]

13. It places the limits

on the patient. What about the rate the insurance company sets? That would be unimaginable, I suppose.

Thom Hartmann said this is all about insurance companies being invested in the market and the dot.com bubble bursting. I'm not sure of that, myself, but Thom is a smart guy.

[LoneStarLiberal]

14. Texas is a pro-business state

Texas is a pro-business state like many others in the South.

That's all we need to know to understand this and all other brands of limits on damage and tort reform. Government interests are looking out for their corporate sponsors.

Next topic.

[LightTheMatch]

15. Exactly!

You hit the nail right on the freaking head.

[Bridget Burke]

16. Insurance companies contribute lots of $$$$$

To our little governor & TX legislators. Perry is pissing his pants to get this passed--he considers this a crisis! Do you trust HIS judgement?

From the Chronicle article: "Figures collected by the Texas Board of Medical Examiners for medical malpractice claims since 1989 show that the number of lawsuits filed has dropped from 5,467 in 1999 to 4,555 in 2001. During that same period, the total amount paid in claims has declined from $171.5 million to $71.1 million.....

"The proposed amendment will appear on the ballot as follows: The constitutional amendment concerning civil lawsuits against doctors and health care providers, and other actions, authorizing the Legislature to determine limitations on noneconomic damages.

"The phrase 'and other actions' makes the measure something of a Trojan horse. It clears the way for lawmakers in future sessions to enact damages limits on other civil actions. That concern has prompted groups such as the Texas Association Against Sexual Assault, Mothers Against Drunk Driving and the Sierra Club's Lone Star Chapter to oppose it."

Hey--something like a vasectomy gone horribly wrong wouldn't affect somebody's earning power. Nor health expenses--no STD's, for sure. So a simple lump sum should suffice, don't you think?

[depakid]

27. My take is that most people don't understand the issues

because:

Neither they nor someone you know has been disfigured, suffered brain damage, had the wrong limb amputated or breast removed,

Neither they nor someone they know is a healthcare professional working under the kinds of conditions that make medical negligence an ever increasing problem in the nation's healthcare facilities;

Neither they, nor anyone they know has ever tried such a case or had to tell a client that they had no cause of action against their HMO for their child being denied the proper standard of care;

Neither they, nor anyone they know has ever sat on a jury and heard one of these cases.

The insurance industry bears the lions share of the blame for the so called "malpractice crisis." Partially through bad outside investment decisions (which they pass along through higher premiums) and partially through poor underwriting procedures. Unfortunately, they also wield the lions share of corrupting influence in the corporate media and in the various legislatures.

Blaming trial laywers (or even "bad" physicians) is an easy way to incite prejudices- thereby misdirecting people away from the real and more complicated facts.

One fact isn't complicated, though. A right is worth NOTHING if it cannot be enforced, and if you cannot find a lawyer to take your case, you have NO rights. Period. No matter how egregiously you've been wronged.

Medical malpractice and negligence cases are often extremely difficult to prove and are usually very expensive to try. Few attorneys are willing to risk the time and out of pocket expenses unless there's a chance that a jury (that means people like you and I) will award their client a substantial judgment- and NO insurer is going act reasonably and tender a fair settlement unless the threat of losing big in court looms over their heads. Insurers are basically professional gamblers- so it shouldn't surprise anyone that many will do just about anything they can get away with, however underhanded, to increase their odds.

So, before you decide on the issue, you should ask yourself: do you really want them holding all the cards?

Or would you rather trust of jury of your peers to hear both sides and do what they think is right?

[AP]

28. Why are they capping damages for victims of negligence?

People who get the awards are people who have proven negligence. They are people with damages caused by negligence. To me, the solution is to do something to stop the frivolous law suits -- something to stop people who aren't vicitims of negligence from getting something they don't deserve.

Any you know who pays when the person causing the damage doesn't pay? The damage is still caused. Society suffers. Because either society (the government) will have to take care of the person who doesn't recover all their damages, or you'll have to accept that people for long periods in their life are going to be devestated by losses for which they don't get compensated. Another thing, if you don't pay for the damages you cause, you tend to keep causing them. Having to pay damages gets you to take care not to cause damage.

Think of a woman who has her breats negligently removed, or a guy who has his testicles negligently removed. You'd have no economic damages. You can still work. But how do you recover for the psychological damage (that might keep you out of work, or make you work less productively, which have social as well as personal costs)? And do we want a society where doctors would rather pay out a 100K here an there rather than actually take steps to stop cutting off wrong body parts?

[AP]

29. One thing this will do is discourage good lawyers from doing medical mal

work, which is almost like denying people their rights.

Med Mal suits are very expensive for the prosecution because there is such a huge disparity between the economic power of the two parties. If plaintiffs can't expect to recover the full value of their damages, they won't bother persuing these cases.

In the UK, were access to justice is relatively cheap, they still have a problem with this. Med Mal recovery is totally capped and there is a ton of medical negligence and the public really suffers because of it, and there's no real med mal bar which forces reform and wins decent recoveries for plaintiffs.