"Still, I’m willing to look at other ideas to bring down costs, including one that Republicans

[hedgehog]

Republicans suggested last year — medical malpractice reform to rein in frivolous lawsuits."

I think this is a nice bit of using the Republicans' talking points against them.

We pass a law making it harder to file frivolous lawsuits, and they've won their point. Now they owe us one. If there are in fact frivolous lawsuits, we cut costs. If there are no frivolous lawsuits, we've passed a meaningless law. Meanwhile, the guy at home who isn't paying much attention says, "Gee, those Democrats compromise, what's wrong with those Republicans?"

[tabatha]

1. It is one way to prove them wrong

and to get rid of something they have beaten to death. Boxing them in, it is called.

[hedgehog]

2. What would be really cute is to put something in a bill banning

frivolous lawsuits that the Republicans will really, really hate, but that the average person will like.

[eleny]

3. "Now they owe us one. "

They don't ever seem to feel that they owe us one. They just act like it's a good start, that the president sees it their way is long overdue and how we have to give them more and more and more.

"Now they owe us one." Never.

Besides, how they define frivolous is going to be outrageous, imo. They couldn't care less how much the ordinary people suffer.

[vi5]

4. Yes, that will work...

Because there's nothing Republicans do better than "Hey, thanks for that. We owe you one."

If I had a dollar for every time that's happened.....well, I'd be broke.

And of course why not sell another typically democratic demographic (both trial lawyers, and people who might legitimately need to sue for damages or pain and suffering) to appease Republicans for whom it will never be enough.

Malpractice reform in most of it's proposed forms doesn't mean making it harder to file frivolous lawsuits. It means capping pain and suffering damages arbitrarily. And it means making ones primary value and worth based on lost wages. Because what are our lives if not working and making other people rich?

"One the republicans suggested last year...." Bullshit. The republicans have been suggesting this for decades. Both because they don't want anyone of wealth to be held accountable for anything, and also because they know that it hits a primarily Democratic constituency. The only difference between the past couple decades and now is that they have a Democratic president and congress willing to bend over backwards to accomadate them.

[hedgehog]

5. I should have said that the person in th emiddle who isn't paying attention

will say "Huh, those Democrats are willing to compromise, now it's the Republicans' turn." Then, when the Republicans fail to offer their own compromise, when they refuse to take their turn, it will offend the "play fair" sensibilities of people who pay more attention to sports than to politics.

If we toss the Republicans a bone, we'd actually toss a hot potato they won't be able to get rid of.

[vi5]

6. Sorry, it's not going to happen...

We saw that with Healthcare reform, which was basically a Republican plan from the 90's.

This has been the supposed wisdom for the past two years, and it hasn't worked on a goddamn thing.

We offer the "compromise", they say "We'll take it!", it pisses another group of Democratic voters off and discourages, and then all we get is Republican spit in our faces in return.

And the media, which is where this mythical person in the middle is, will still spin it as a Republican victory and Democratic capitulation, which it will be.

[former9thward]

7. You can't pass a law banning "frivolous" lawsuits.

Your definition of frivolous and mine may be completely different. Frivolous has to be defined and everyone has a different opinion of that. Second, medical malpractice lawsuits are usually filed at the state level so passing a federal law has no meaning. Fifty states would have to pass laws.

[customerserviceguy]

8. Not necessarily

It could be part of the provisions that if you accept any Federal subsidy of your healthcare (and hey, that could even be defined as having tax-free treatment of the premiums paid by your employer) that you automatically agree not to file suit.

I've long been an advocate of a worker's comp type of board to evaluate malpractice claims. The current tort system is drawn out, uncertain as to results, expensive, and ultimately (through gag orders) keeps those who commit malpractice a secret. I'd gladly favor anything that gives a swift and sure resolution to each claim, without clogging up the courts and making lawyers and professional 'witnesses' wealthy in the process.

[vi5]

9. Wait....

Are you really suggesting that if someone accepts federally subsidized health care, and are seriously injured, crippled or killed by a negligent doctor that there should be a provision that the person can't sue that doctor because the person used federal healthcare?

[customerserviceguy]

15. What I'm saying is

that such a provision could be enacted at the Federal level, not that it should be. ERISA prevents certain kinds of legal actions for recovery in pension law cases, if I remember correctly. Congress could indeed write laws that limit the ability of state civil courts to deal with this.

My proposal was just a way to illustrate that there are other ways of compensating injured parties than the tort system.

[hedgehog]

30. I think you are right that we need a workman's comp type of board.

Maybe for some situations, we need something like the vaccine court. If I understand correctly, the vaccine court is based on the recognition that if 100% get vaccinated, a very small number will have an adverse event. This is in spite of the best efforts of the vaccine manufacturers for various reasons I don't want to go into right now. In any case, if you are judged to have been harmed by a vaccine, your expenses are paid out of a fund set up for that purpose. For years, obstetricians have faced law suits if the child is born with cerebral palsy . The assumption was that the child's brain was damaged by an improper delivery. I think that this is no longer viewed as the cause. However, doctors are still getting sued and plaintiffs paid because the juries feel sorry for the families and want someone to pay for the child's care.

The tort system does protect too many doctors who should have their licenses pulled.

[customerserviceguy]

31. The tort system has evolved into a monster

It produces expensive 'defensive medicine', it provides great uncertainty for those who are injured, recoveries take years if they happen at all, the court system gets clogged up, and in the end of it all, the lawyers are the ultimate beneficiaries, both for the plaintiffs and the defendants. It doesn't allow the rest of us to know the outcomes of the investigations, and allows incompetant doctors and hospitals to keep on doing what they're doing.

[mkultra]

20. man, i never seen a post be wrong in so many ways

There are plenty of common views on what can be consider frivolous. This includes people who file multiple suits for minor procedures. It is possible to rein them in some without depriving true filers of the right to remedy. Second, the fed can pass laws that effect state lawsuits because any suit that doesn't follow the pattern of the law can be appealed to the federal level.

[former9thward]

24. Please get your money back from whatever law school you attended.

Federal courts can only consider cases where there is a federal question involved. Medical malpractice is generally not one of them. Check how many medical malpractice cases the U.S. Supreme court has ever considered. Better yet get your law school to help you with it. I'm sure they will be right on it. Who defines what is a minor procedure? How many suits? So if someone files 3 suits over "minor procedures" that are thrown out, he is then stopped from filing another suit if something legitimate happens? Yeah, that will fly.

[mkultra]

26. my appologies for being so confusing, let me clarify

federal courts can try cases of state question if the parties are of different states and the monetary amount is greater than $70K. They can also try any case that is based on a federal question. The supreme court gets to choose what cases it hears and since there are few(but still some) malpractice laws at the federal level(they fall under health and human services) it still remains possible. If there where both state and federal law regarding malpractice, I'm guessing the plantif would choose the venue and could probably open a lost state case in federal but not the other way around.

California's medical malpractice laws are considered very effective in balancing the issue from what i hear while TX has a bunch of crappy laws.

[OwnedByFerrets]

10. Owe us one? You live in a fantasy world if you think they play by

those rules.

[Donald Ian Rankin]

11. Medical malpractice suits are probably too easy to bring in the USA at the moment.

It's easier to sue one's doctor and get more in the USA than in the vast majority of other first-world countries, I believe (not 100% sure of this, but I've heard it said).

This means that a) ambulance-chasing is big business, and b) malpractice insurance for doctors adds non-trivially to the cost of fees for medical treatment.

[Dr Fate]

13. People are probably less compelled to sue in places where HC is free.

I believe (not 100% sure of this, but I've heard it said)that other 1st world countries are generally healthier than us, so there may be fewer reasons to sue doctors where the Public Option or single payer is available (more check ups, more preventative medicine, etc.)

As much as I have to spend on HC a year, I would imagine wanting to sue my Doctor if he screwed something up. It's not like this stuff is cheap.

If Doctors & Insurance execs. expect to drain my income so they can be paid like kings, then I expect they can manage to shoulder some responsibility as well.

[Jakes Progress]

14. Check Texas.

My neighbor's mom had a doctor operate on the wrong eye, fill it with silicon to cover up, and when caught claimed that he knew it was the wrong eye but the 80 year old woman told him to do it. His insurance company lawyers tied up the procedeings with multiple depositions and there were six cases of doctors and hospitals losing records, all these doctors and hospitals have the same insurer as the eye doc. The woman had to go through three lawyers because none would take the case. Why? She is 80. They worried that she wouldn't be a good witness and the amount they were limited to suing for wouldn't pay for five years of legal work. Five years? Yep that is how long the insurance company kept it up. End result, the woman died. Five years of blindness and they ran out the clock on her. The lawyer that took the case got bupkis. Without being able to sue for more what it costs to depose and hire medical experts, lawyers are reluctant to take these cases. Early on, the lawyers for the insurance company told the woman that she should settle for the $5,000 they offered because otherwise they would tie up the case for years and after all, they said, how many do you have.

And this great tort reform that was to save doctors millions in insurance. Premiums haven't gone down a penny. Insurance profits are through the roof and a large portion of those profits go to finance the noble members of the Texas legislature.

Don't like malpractice cases? Tell it to the children who spent half of their retirement funds caring for their blind mother until she died waiting for the case to come up.

[Dr Fate]

16. And I wonder how much money she paid out to the medical establishment over her lifetime.

If she is like many people, I'll bet a significant amount of her life time income was spent on health insurance and on doctors.

She kept up her end of the deal, the doctors & middlemen got their cash out of her, yet she got screwed.

And I'm supposed to feel sorry and "compromise" on behalf of negligent doctors and greedy insurance goons, under this current for-profit system?

I'll need more convincing.

[Jakes Progress]

22. I keep running into democrats

who are doctors or lawyers who are blind to the greed and excess of most in their profession. Hurray for those who fight agains their peers for medical and legal decency.

[Donald Ian Rankin]

25. Stop and think about what you're saying.

On the one hand, you're complaining about the amount of money lawyers make from malpractice suits - which I agree with you is too much, because of the cost it adds to getting medical treatment - but on the other hand you're against the only possible way to reduce that amount.

[Jakes Progress]

27. Stop and read.

You have a very narrow way of interpreting what is happening. I didn't complain about how much lawyers make. I complained about corporate lawyers using suits to drive up their fees. With capped awards, it pays the company to pay their lawyers instead of the people they have maimed and wronged.

You seem to have a bias going here. Care to fess up?

[Donald Ian Rankin]

28. What do you think this "bias" I should confess to is?

And how do you distinguish between a "bias" and an "opinion"?

[Jakes Progress]

29. Skip the bias then, How about responding to the issue?

Bias comes from a vested interest. If you or yours makes your money from insurance, corporate law, or medicine, you have bias.

I have bias too. My family has been screwed by these crass attempts to protect and reward corporate interests.

[Donald Ian Rankin]

32. I'm not even American, so the whole issue is moot to me.

I have several relatives who are doctors, but because we have a saner healthcare system the degree of compensation people whose medical treatments go wrong can receive has no impact on them.

Here in the UK we have the NHS. This means that medical care doesn't have nearly such a high insurance overhead, because the NHS can afford to average out its losses to compensation suits in a way that individual doctors can't. Even so, arrival of American-style "compensation culture" is a concern - it could mean a significant cut in the fraction of the NHS's budget that can be spent on providing healthcare.

[Jakes Progress]

33. Then your view is also moot.

From the UK (congratulations on your healthcare) your views about this are mostly formed by the media and the "insider" opinions of the medical professions. Decent doctors here have mostly figured it out. All the hoopla about "crazy" lawsuits and "huge" payouts and the need to limit them are just so much insurance corporate posturing. You lack the ghoulish insurance mess that is our health care system. All the tort reforms and caps have done nothing to protect decent doctors or lower their insurance premiums. In states where they exist all they do is increase insurance company profits.

Your concept of the "American-style compensation culture" is the successful work of the constructs devised by corporate insurance. Your concerns are fueled, not by greedy Americans, but by greedy corporate propaganda. In other words, you have been successfully targeted.

[Donald Ian Rankin]

17. Two obvious responses leap to mind

One is that I'm only hearing one side of the story from you, obviously.

The other is that if your reporting of this is accurate, tightening up the conditions under which a malpractice suit could be brought wouldn't affect it - you describe obvious wrongdoing.

It is obvious that doctors who deliberately do harm, as you describe this one doing, should be criminally liable. However, to what extent doctors who make honest mistakes should be is much more debateable. The answer is probably "less so than they are currently in parts of the US at present", and your anecdote is not relevant to this question.

[Jakes Progress]

21. Yeah, yeah.

Insurance apologist weaseling is not acceptable.

First. This was a weaselly way to call me a liar.

Second. It is the "tightening up" that cause the problem. They limited amounts payable and called it tort reform. No premiums have been reduced. Fewer suits take place. The ones that do are the big old kind that you refer to. They are the ones that sleazy lawyers and sleazy corporate lawyers use to bill millions of hours. They hit the big headlines and both the creepy lawyers who search out these clients and the lower than fungus lawyers the sell their soul to insurance companies use. One gets more clients, the other gets an example they can use to scare their corporate asses into paying more.

The doctor didn't deliberately do harm. He was just incompetent and used his insurance company to shield him from any blame. The whole medical community in the city came to his aid by losing records and refusing to treat his mother. I went with him and her to one doctor who said it was his policy never to testify against another doctor - ever. My friend said he got this from other doctors too.

He went to three lawyers who determined that they couldn't take the case because the odds were against them recouping their expenses. This was a simple, open and shut case of malpractice. He cut open the wrong freaking eye. But she never got any compensation and the only people who made money were the insurance company and its lawyers.

The decent lawyer that took the case worked for five years because he thought she deserved the pittance she was asking. He got nothing. Had the case gone to court and the grandmother won, the most she could have received was not enough to cover her expenses after court costs including expert witnesses and the extensive witness testimonies.

It is time for decent (meaning liberal) lawyers and doctors (one of which I assume you are) to understand that many in their field lack any care or concern for others. Most are republicans. The cry for "tightening up" and tort reform are republican initiatives.

[juajen]

18. Depends on the state. In LA we have the medical mal[practice act,

which makes it a prerequisite to go before a board comprised of doctors where your lawsuit is judged. While you can go forward with a failed lawsuit form the board, it is more difficult and your award will automatically be diminished. However, even with a win from the medical board, the damn lawyers for the insurance companies hold you up incessantly until plaintiffs are exhausted and take less than they deserve. Other states also have caps on what you can get.

[Dr Fate]

23. How do LA's Health stats hold up to the rest of the country?

Statisitically, are LA residents generally healthier or less healthy than the rest of the country?

I'm just wondering if LA is the best state to use as a model for further HC reform tweaking.

[Dr Fate]

12. "If there are no frivolous lawsuits, we've passed a meaningless law."

I'm not sure it would work that way. The law would probably define many law suits that are currently legit as frivolous.

Conservatives did the same thing when they made exceptions & gave immunity to gun manufactuers. They essentially defined otherwise legit product liability suits against gun manufacturers as frivolous.

I hear ya though- gotta compromise lots more things away before we can have more progress. They owe us one- fair is fair in politics! LOL!

[flpoljunkie]

19. NYT: Would Tort Reform Lower Healthcare Costs?

August 31, 2009, 3:45 PM
Would Tort Reform Lower Costs?

By ANNE UNDERWOOD

Medical tort reform is moving to the fore of the health care debate. On Sunday in The New York Times, former Senator Bill Bradley, Democrat of New Jersey, argued that one way to gain support of both Democrats and Republicans might be to combine universal coverage with tort reform. Mr. Bradley also suggested that medical courts with special judges could be established, similar to bankruptcy or admiralty courts.

On “This Week With George Stephanopoulos,” Senators Orrin G. Hatch, Republican of Utah, and John Kerry, Democrat of Massachusetts, seemed to agree that medical malpractice lawsuits are driving up health care costs and should be limited in some way. “We’ve got to find some way of getting rid of the frivolous cases, and most of them are,” Mr. Hatch said. “And that’s doable, most definitely,” Mr. Kerry replied.

But some academics who study the system are less certain. One critic is Tom Baker, a professor of law and health sciences at the University of Pennsylvania School of Law and author of “The Medical Malpractice Myth,” who believes that making the legal system less receptive to medical malpractice lawsuits will not significantly affect the costs of medical care. He spoke with the freelance writer Anne Underwood.

Q.
A lot of people seem to have taken up the cause of tort reform. Why isn’t it included in the health care legislation pending on Capitol Hill?

A.
Because it’s a red herring. It’s become a talking point for those who want to obstruct change. But (tort reform) doesn’t accomplish the goal of bringing down costs.

Q.
Why not?

A.
As the cost of health care goes up, the medical liability component of it has stayed fairly constant. That means it’s part of the medical price inflation system, but it’s not driving it. The number of claims is small relative to actual cases of medical malpractice.

Q.
But critics of the current system say that 10 to 15 percent of medical costs are due to medical malpractice.

A.
That’s wildly exaggerated. According to the actuarial consulting firm Towers Perrin, medical malpractice tort costs were $30.4 billion in 2007, the last year for which data are available. We have a more than a $2 trillion health care system. That puts litigation costs and malpractice insurance at 1 to 1.5 percent of total medical costs. That’s a rounding error. Liability isn’t even the tail on the cost dog. It’s the hair on the end of the tail.

Q.
You said the number of claims is relatively small. Is there a way to demonstrate that?

A.
We have approximately the same number of claims today as in the late 1980s. Think about that. The cost of health care has doubled since then. The number of medical encounters between doctors and patients has gone up — and research shows a more or less constant rate of errors per hospitalizations. That means we have a declining rate of lawsuits relative to numbers of injuries.

Q.
Do you have numbers on injuries and claims?

A.
The best data on medical errors come from three major epidemiological studies on medical malpractice in the 1970s, 1980s and 1990s. Each found about one serious injury per 100 hospitalizations. There hasn’t been an epidemiological study since then, because people were really persuaded by the data and it’s also very expensive to do a study of that sort. These data were the basis of the 1999 report from the Institute of Medicine, “To Err Is Human.”

Q.
And what percent of victims make claims?

A.
Those same studies looked at the rate of claims and found that only 4 to 7 percent of those injured brought a case. That’s a small percentage. And because the actual number of injuries has gone up since those studies were done — while claims have remained steady — the rate of claims is actually going down.

Q.
So the idea that there are lots of frivolous lawsuits is . . .

A.
Ludicrous.

more...

http://prescriptions.blogs.nytimes.com/2009/08/31/would-tort-reform-lower-health-care-costs/