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Left/Right could support health bill with tort reform. Lefts wants out of Aghanistan; Right wants it:

This week's National Journal poll of political bloggers asked, "Could you see yourself supporting health care reform if it included tort reform"? Sixty-two percent of the Right and 50% of the Left said "yes." (With 36% "no" and 14% maybe.) The Right actually liked tort reform, while the Left was willing to accept it as an unpleasant price to pay.

I wrote: "Sure. Depends on what else is in the bill. The more that it removes restrictions on consumer choice, without imposing new taxes or additional spending, the better."

Question 2 was "Do you want U.S. troop levels in Afghanistan to rise, fall, or hold fairly steady in the coming months?" Sixty-three percent of the Right wanted a rise, while 72% of the Left wanted a fall. I was pro-rise: ""Losing Afghanistan to the Taliban would be a catastrophe. Vietnam was an important strategic loss, but Vietnam did not turn into a base for terrorist attacks on Americans. The dominos that fell with Vietnam did not include countries with nuclear arsenals which might be turned over to terrorists for attacks on the West. Support the president!"

Andy Rozell (mail):
We got tort reform here. As far as I can tell, it hasn't done much to make my medical insurance cheaper.
9.11.2009 11:50am
Andy Rozell (mail):
But it has really hammered both the Plaintiff's and Defense bar financially. Considering how much most folks dislike lawyers, that would probably be a good selling point.
9.11.2009 11:51am
Houston Lawyer:
If tort reform has hammered the bar, somebody is keeping the money that used to go to these guys. I find it unlikely that the insurance companies are pocketing all of that.
9.11.2009 12:08pm
Angus:
I don't know if this is possible, but I'd actively support tort reform that allowed exceptions to the damage caps. Low damage caps help doctors and insurance companies by discouraging frivolous claims, but can really limit avenues of redress for people legitimately harmed in major ways. For example, children disabled by medical malpractice can't claim any economic damages for lost wages, so are limited to $250,000 or whatever the cap is despite living with preventable disability that might prevent them from working for 50 or 60 years.

Beyond that I'm willing to accept them despite them having little to no impact on medical insurance costs. Medical malpractice insurance costs went down, but it had no impact on costs to the average buyer of insurance. In other words, tort reform helps the doctors, but not their patients.
9.11.2009 12:11pm
Tim Nuccio (mail) (www):
Maybe I'm in the minority of libertarians, but I do not support any form of so-called "tort reform." The more we move away from the common law and towards statute, the more corrupt our legal system becomes.
9.11.2009 12:13pm
RDW:
The only good tort reform is to ban malpractice lawsuits completely. Doctors, hospitals, and drug companies should have nearly absolute immunity from lawsuits. They should only be allowed if the plantiff can demonstrate the doctor or drug company intentionally caused the patient harm. For example, in Wyeth v. Levine, Levine would only be allowed to sue if she could demonstrate the doctor and drug company intended her to lose her arm.
9.11.2009 12:14pm
Andy Rozell (mail):
Houston Lawyer

Malpractice insurance may have gone down. I've heard some reports that it has. But my medical insurance premiums haven't gone down any.

As to the bar - I'm seeing lots of defense firms letting people go, trying to do collection work, and the like.
9.11.2009 12:20pm
The River Temoc (mail):
Losing Afghanistan to the Taliban would be a catastrophe.

I think that it is worth exploring whether this is actually true. It hinges on the question of whether (1) the Taliban would let al-Qaida operate freely, as they did before 9/11; (2) whether the Taliban could not be co-opted, the way the Iraqi tribal shaykhs in al-Anbar were; (3) whether Afghanistan is really the launching pad for terrorist attacks, as opposed to places like Hamburg and Leeds; and (4) whether the Taliban really could overthrow the government of Pakistan.

The last question in particular is quite problematic. The Islamist "ulema parties" did badly in last year's Pakistani elections, and mainstream, common-law tradition parties did well. And why do we think that a Pashto nationalist movement will really hold any sway in Sindh or Punjab?

I don't mean to argue for withdrawal from Afghanistan. But I think we should at least be asking these questions, rather than accepting the "this is a war of necessity" point on face value.
9.11.2009 12:24pm
einhverfr (mail) (www):
I don't think we are quite ready for tort reform though I support it in principle. I think at best we could expect a beginning for real tort reform but harder decisions will have to come later. However, I do agree that the med mal system is really corrupt.

As for Afghanistan, I think troop levels need to rise, but we shouldn't fool ourselves into thinking that it is possible to just send in more troops and conquer this very rugged area. We need a LOT more effort to go into political reforms as well. Honestly, I am pessimistic about Afghanistan and I am not certain that the form of government which has been established there (the International Crisis Group calls it the most centralized government in the world) is going to be stable ever. We need to win there, but we can't win by backing a losing horse.
9.11.2009 12:25pm
PhanThom:
Angus,

Hypothetical question: let's say there's a cap on damages in med. mal. cases. Let's say, $1,000,000.00. That covers all loss, economic and noneconomic. Let's also say that a judge can, for good cause shown, remove the cap if the patient's economic losses will exceed $1,000,000.00.

Do you know what will happen?

No doctor will carry more than $1,000,000.00 in insurance. Patients who suffer the most serious injuries will not be able to get compensation. They will likely end up on Medicare and Medicaid, and we will pay for their care for the remainder of their lives.

To the best of my knowledge, tort reform has never done anything to drive down premiums. In fact, in the states that have passed tort reform, premium prices have risen at the same rate as in states without tort reform.

And why should doctors or drug manufacturers get special treatment? If I drive a semi, and I negligently hit a fully loaded minivan, I (or my insurance company or employer) will be responsible for the injuries I cause. So why do doctors get a pass?

--G
9.11.2009 12:30pm
Angus:
My take on Afghanistan. Afghanistan has chewed up and spit out every powerful western army sent to it: Alexander the Great, British Empire, Soviet Union. Pursuing anything more than kicking around the Taliban and the capture of Bin Laden is a fool's dream. The ironic thing is that our occupation of Afghanistan is what forced the Taliban into Pakistan, thus further destabilizing that nuclear nation.

No doubt that the Taliban are bad guys, but it's hard to envision a realistic, obtainable positive outcome in the long run. Neither Bush nor Obama seem to have any plan there.
9.11.2009 12:35pm
first history:
The recent election for Mayor of Kabul (I mean President of Afghanistan) really demonstrates the insanity of pushing democracy in a country halfway through the Middle Ages. Much more political work needs to be done at the local level, something that has been ignored by coalition forces until recently.

In addition, the US continues to deny the importance of the poppy trade to the Afghan economy. As pointed out by Prof. Somin here and elsewhere on VC, the War on Drugs is undermining the War on Terror (or overseas contingency operations, if you prefer). As I have argued here, what the international community and Afghan government should do is legalize the poppy trade in Afghanistan and create a village-based economy in refining opium into morphine for local use. See here for a proposal by the International Council on Security and Development. This would concurrently cut off a supply of funds from the Taliban and develop a secure economic future for Afghan farmers.
9.11.2009 12:43pm
Matt Heine:
Tort reform is necessary. But medical malpractice limits are not the only useful reform component. Indeed as many folks point out here in some cases they merely transfer the rents from lawyers to doctors. Rather than limits, providing a evidentiary bar in order to file a malpractice suit would limit costs of malpractice insurance while still encouraging safe practices. Additionally providing for rescinding of medical license in cases of egregious malpractice would be a good idea.
9.11.2009 12:49pm
TM Lutas (mail) (www):
Over the 21st century, we're headed for a world where serious damage can be inflicted on the world by the smallest of subnational groups. Items that are perfectly safe in a well connected country where most everybody has a stake in the national and global system become much more hazardous in the non-integrated Gap. We're faced over the long term with either halting progress (impossible) or bringing everybody in from the cold (very, very difficult). Bringing in 2 billion people into what is known as the global middle class over the next century is a gargantuan task but it's the only thing that's likely to let us see the 22nd century relatively intact.

Afghanistan is a relatively thorny piece of that problem. It's got to get solved. How to manage the details is another thing but we certainly shouldn't abandon the project without success.
9.11.2009 12:50pm
kdonovan:
Angus:

My take on Afghanistan. Afghanistan has chewed up and spit out every powerful western army sent to it: Alexander the Great, British Empire, Soviet Union. Pursuing anything more than kicking around the Taliban and the capture of Bin Laden is a fool's dream. The ironic thing is that our occupation of Afghanistan is what forced the Taliban into Pakistan, thus further destabilizing that nuclear nation.


Why do you say it chewed up Alexander? It did take him a couple of years (though much of this was actually spent in Transoxiana fighting Skythians)but after he left for India it was farily stable - Greek dynasties ruled for several hundred years until they fell to outside invaders from Central Asia.

Kevin
9.11.2009 12:52pm
einhverfr (mail) (www):
First History:

The recent election for Mayor of Kabul (I mean President of Afghanistan) really demonstrates the insanity of pushing democracy in a country halfway through the Middle Ages. Much more political work needs to be done at the local level, something that has been ignored by coalition forces until recently.


It's not just that though. Afghanistan is an autocratic, non-federalist system with a facade of democracy. This government makes Putin look like a federalist-- in Afghanistan regional governments have to have their budgets approved by the President......

Really, though, one major beneficiary of all of this is Iran. They can claim the development of Islamic Republics along their border is a validation of their model of government, and can then use their influence to play both sides against an American victory. The advantage to them is that an American quagmire in Afghanistan or Iraq means that it is not possible for any US government to attempt a committed invasion of Iran. We could I suppose launch air strikes against Iran if we wanted, but we would have to make very hard choices before seeking to invade and occupy that country.

Our first priority ought to be to the political problems. If we ignore those, we can't win on a military level.
9.11.2009 1:14pm
Whadonna More:

Houston Lawyer:
If tort reform has hammered the bar, somebody is keeping the money that used to go to these guys. I find it unlikely that the insurance companies are pocketing all of that.

Hint - it's immoral for insurance company personnel to drive BMWs, but ok for doctors, hospital administrators and drug company execs.

As for eliminating all malpractice without intent - that's fine as long as the government gets to set doctors' pay. Deal?
9.11.2009 1:15pm
Angus:
From what I've read on the Seleucid Empire, they found their Eastern Provinces (including Afghanistan) nigh impossible to govern and that their dominion was more claimed than real.
9.11.2009 1:15pm
first history:
Really, though, one major beneficiary of all of this is Iran.

Agreed. In really ironic twist, the Bush Administration's wars in that region have really elevated the power of Iran. The US defeated its main enemy (Iraq), and installed an Iraqi leadership that spent years as exiles in Iran. Rather than supplying weapons to the Iraqi opposition, Iran should encourage peace in Iraq. The US would then have no excuse to stay; thereby speeding their exit from Iraq, and leaving Iran as the preemenint power in the region.
9.11.2009 1:23pm
RDW:
As for eliminating all malpractice without intent - that's fine as long as the government gets to set doctors' pay. Deal?

No.
9.11.2009 1:24pm
Soldats (mail):
Doesn't so called "tort reform" put restrictions on consumer's rights to sue?

So we're all for removing restrictions on consumer choice except when it interferes with how much damages a consumer gets in payment for malpractice?
9.11.2009 1:44pm
PLR:
I might suggest to those who hate the plaintiffs' bar that once taxpayers are unambiguously footing the bill for medical malpractice, there will be some obvious incentives to cut down on unjustified damage awards.
9.11.2009 1:47pm
PLR:
Losing Afghanistan to the Taliban would be a catastrophe.
Snicker. Guess it's not a good time to pull out that old Rumsfeld photo.
9.11.2009 1:48pm
Thorley Winston (mail) (www):
I would have voted "no" because while I support Medical Malpractice Reform and Health Care Financing Reform, I think that the issues should be dealt with in separate standalone bills. As should Medicare reform, Medicaid reform, Medical Innovation Reform (e.g. FDA and patents), and Medical Quality and Quantity Reform.


A large part of the problem is that each of these issues is thrown together into a monstrous omnibus bill hundreds or thousands of pages in length and while each of these is related to health care, the "solutions" for each should stand or fall on their own merits.


For a Health Care Financing Reform bill, I would start with the following:

1) Allow the purchasing of health insurance across State lines just as we can for auto insurance, life insurance and every other legal good and service. I'd be willing to include oversight to ensure minimum actuarial requirements for insurance companies and stopping actual cases of rescission.

2) Remove barriers on forming risk pools to allow small businesses and other organizations to for an Association Health Plan and buy insurance (about 60% of the uninsured work for small businesses). If there are people who have preexisting conditions where it's still cost-prohibitive to buy insurance on their own (although I think most of these would be able to be part of an Association Health Plan), we can talk about providing assistance to States that form risk pools for these individuals to join.

3) Give people who buy insurance in the individual market the same tax treatment as employers or make all health care costs fully tax deductible. I'm not a fan of employer-based health insurance (but the risk pool is important) but most people seem to like it so I'm satisfied with giving people who buy their own health insurance the same tax treatment.

4) Encourage purchasing of high deductible policies that cover catastrophic care instead of prepaid health care. These policies usually have much lower premiums and actually act as health insurance. I'm open to some sort of targeted subsidy (perhaps by giving States waivers to experiment) to help lower income people who aren't already eligible for Medicaid with the cost of premiums.

5) Remover barriers to Health Savings Accounts to pay for routine out-of-pocket costs (while insurance covers catastrophic events that people can't protect against themselves). I'm open to the same sort of targeted Subsidy in #4 (perhaps a variation of EITC) to help lower income people who aren't eligible for Medicaid fund their Health Savings Accounts.

6) For the one-fourth of the uninsured who are already eligible for Medicaid but don't enroll until they need to see a doctor, automatically enroll them in Medicaid (although this might be part of a Medicaid reform bill).

I'm also open to things like a tax break for doctors who provide unreimbursed care, some sort of medical loan program, or other creative ideas on that front to deal with these specific problems rather than some massive overhaul.
9.11.2009 2:06pm
matt c (mail):
I thought Afghanistan was the only true place we should be fighting according to liberals. Now it is not even worth it.
9.11.2009 2:06pm
Bruce Hayden (mail):
Tort reform is necessary. But medical malpractice limits are not the only useful reform component. Indeed as many folks point out here in some cases they merely transfer the rents from lawyers to doctors. Rather than limits, providing a evidentiary bar in order to file a malpractice suit would limit costs of malpractice insurance while still encouraging safe practices. Additionally providing for rescinding of medical license in cases of egregious malpractice would be a good idea.
I really don't buy into the idea that rents are moved from lawyers to doctors. But even so, that ignores the level of defensive medicine that is practiced as a result of the medical malpractice climate.

I am a bit ambivalent about medical malpractice tort reform. On the one thing, there are a number of John Edwards out there who have made millions by destroying doctors' careers with junk science.

On the other hand, we are living through the aftermath of some fairly strict medical malpractice tort reform. SO was permanently partially disabled (significant visual impairment plus several other problems) through medical malpractice about a year ago. The hurdles that you have to jump through here are fairly steep in order to get anywhere close to trial, and this early, the hospital has all the really important information (it was amazing how little there was in the foot or so of actual medical records). We know pretty much what happened, from contemporaneous admissions. But I think that the hospital also knew, and that is why the evidence is so scarce right now (I am not accusing them of actually fudging records, but maybe not being as diligent as they should have been in their record keeping, knowing what had happened - cardiac arrest in the ICU is fairly obvious).

So, what we have right now is that hospital trying to collect for the extra month that she was in their facility as a result of their screw up, while not having a good chance at prevailing in the malpractice suit because of the legal hurdles put in place for this sort of suit. Compounding this is that non-economic damage cap is low enough that they may not cover the contingency fees.

I really don't want to see caps on economic damage - I have seen how quickly you can blow through a million dollars in medical costs. It is the non-economic damages that I worry about. The problem with absolute caps (like we have here) is that when you have decently large economic damages, non-economic damages cannot help cover the litigation costs. So, I would probably be a lot happier with some sort of ratio - for example, non-economic damages not exceeding, say, 1/3 of the economic damages. Maybe 1/4. That sort of thing.

Of course, what would make this a lot better all around would be a loser pays system. That would go a long way towards eliminating frivolous suits, while providing an avenue for worthy suits. It would allow malpractice suits to help maintain the quality of medical care, while not running off the good doctors as well as the bad ones.

Wishful thinking, I know, but we can still dream.
9.11.2009 2:08pm
Brock Ventura (mail) (www):
After spending $2.3 trillion for the Banking industry and $130 billion for the Automobile industry Barack Obama stated his plan tonight to add the Healthcare industry to the government's umbrella. The receipt for america purchased by the liberals tally over $3.3 trillion...at least we did not come cheap. Funny thing is we are buying ourselves...ironic! How much of our money do you think will be spent by the end of Obama's Kingship? Do Kingships end?
9.11.2009 2:14pm
Angus:
I thought Afghanistan was the only true place we should be fighting according to liberals. Now it is not even worth it.
Eight years ago, when there was something to accomplish, yes.
9.11.2009 2:20pm
Bruce Hayden (mail):
1) Allow the purchasing of health insurance across State lines just as we can for auto insurance, life insurance and every other legal good and service. I'd be willing to include oversight to ensure minimum actuarial requirements for insurance companies and stopping actual cases of rescission.
This is the only place I see problems with your suggested solution.

There are a number of reasons why insurance costs differently in different states. Some of them are: cost of living; malpractice environment (and the resulting level of defensive medicine practiced); and state coverage mandates.

So, right now, an insurance company selling insurance in a low cost state, with a good tort environment, and few state coverage mandates, can charge a lot less than they would in a state without these. In high cost locations, everything costs more, including rent, salaries, and, often, taxes. But, in turn, the people there tend to be higher paid, and thus better able to pay higher insurance costs.

So, to some extent, forcing insurance companies to sell the same policies across state lines will penalize those living in low cost areas (and those with stricter tort laws, etc.), and benefiting those living in the high cost areas. That is, of course, unless the insurance companies were allowed to only pay what they would pay for comparable care in the state in which they were selling the insurance. Otherwise, they would presumably have to raise their rates to compensate for the higher costs of covering people in high cost jurisdictions.

But that also brings out why tort reform needs to be included, if we are going to have a national health insurance market. Otherwise, we will have people who live in states with stricter medical malpractice limits subsidizing the tort attorneys in states without.
9.11.2009 2:21pm
Thorley Winston (mail) (www):


I think Bruce Hayden makes an excellent point about the difference between economic and non-economic damages. I don't have a problem with capping non-economic damages like pain and suffering or placing limits on punitive damages. I would not support a cap that included economic damages like medical costs or lost income.
9.11.2009 2:26pm
Whadonna More:

RDW:
As for eliminating all malpractice without intent - that's fine as long as the government gets to set doctors' pay. Deal?

No.

Didn't think so. How about comprehensive reporting of outcomes from every procedure available on the web?

It works for ebay sellers, why not medical care providers?

Or do you think providers should be like baseball and get a congressional monopoly without giving anything up?
9.11.2009 2:34pm
Ak:
I don't know why caps are always the only thing discussed. They do very little to combat the thing doctors really hate about malpractice - the unpredictability. It's not the terrible care leading to a disastrous outcome that gets paid 5 million dollars that really annoys us. It's the people who get $200,000 because the plaintiff had a bad outcome and they appear to the jury like sympathetic people badly in need of money.

It's the uncertainty that is at the root of defensive medicine - you're not being super extra thorough with testing to because you're worried other doctors would think it's the standard of care, you're doing it so that the jury has ABSOLUTELY NO EXCUSE to give someone with a bad outcome money even if they really, really want to. And the plaintiff lawyer realizes that and doesn't take the case.
9.11.2009 3:12pm
Ak:
Actually, I guess I shouldn't say I don't know why it's never discussed. If you think caps will bring out lawyerly fury, something like specialized courts would probably incite a full fledged rebellion against the Democrats.

The vaccine court seems to have done an excellent job of rewarding people who are actually injured by vaccines while weeding out spurious lawsuits. Far too much to hope for anything like that to get traction in the media.
9.11.2009 3:17pm
californiamom:
Caps on damages only address the back end of the litigation equation. Better to have panels of doctors, some chosen by each side, some chosen by a third party, evaluate cases as a prerequisite to filing. If the cases are without merit, they would be dismissed. Some states have adopted this.

Which gets to a more basic question: Medical malpractice in most cases, is a state law matter, not federal. I've been away from the practice for a long time, but I think Utah has this system, likely others. Are their med mal insurance rates lower? Are their health insurance premiums lower?
9.11.2009 3:58pm
Tim Nuccio (mail) (www):
I see the tort issue as one that can potentially solve itself. What if doctors chose to only treat patients who'd enter contracts obligating them to binding arbitration for any malpractice claims? Anything to get away from juries and huge punitive damage awards can be a potential solution to this problem.

It's still not going to fix the high cost of American health care, or our sense of entitlement for it, though. That can only come through increased insurance premiums and less coverage for routine doctor visits.
9.11.2009 4:08pm
Angus:
I would not support a cap that included economic damages like medical costs or lost income.
How do you adjudicate lost income for, say, a 12 year old made permanently disabled through malpractice?
9.11.2009 4:36pm
RDW:
Didn't think so. How about comprehensive reporting of outcomes from every procedure available on the web?
....
Or do you think providers should be like baseball and get a congressional monopoly without giving anything up?


Or like gun manufacturers? Let them report all they want, since it couldn't be used in a malpractice suit. Remember, under this scenario, a plantiff would have to show specific intent by the doctor or drug company to harm a particular individual. Tough standard.
9.11.2009 4:53pm
Thorley Winston (mail) (www):
I would not support a cap that included economic damages like medical costs or lost income.


How do you adjudicate lost income for, say, a 12 year old made permanently disabled through malpractice?



Probably by using whatever methodology the relevant court uses now to compute future lost income. Since I expressly said I do not support caps on economic damages which includes lost income, I'm not sure that I understand the point of the question.
9.11.2009 4:54pm
second history:
You know things are bad when Karl Rove, Sarah Palin, Bill Kristol, and David Kopel endorse the policy of the opposition party.
9.11.2009 4:58pm
RPT (mail):
Not for nothing did the GOP choose as the guy to respond to Obama's health care speech a surgeon who has had a number of malpractice suits against him, for millions of dollars in damages, in a very conservative state. Tort reform would look very good for him.
9.11.2009 5:46pm
Richard Johnston (mail):
RDW said:

The only good tort reform is to ban malpractice lawsuits completely. Doctors, hospitals, and drug companies should have nearly absolute immunity from lawsuits.


Sure, because near absolute immunity has worked so well in the case of employment-based health insurance.
9.11.2009 6:20pm
Richard Johnston (mail):
Bruce Hayden said:

Of course, what would make this a lot better all around would be a loser pays system. That would go a long way towards eliminating frivolous suits, while providing an avenue for worthy suits.


You may very well run into lots of unintended consequences with that. First I think plenty of worthy suits would be deterred, for a couple of reasons. An injured individual plaintiff is far less able to incur the risk of a loss in court than a physician/insurer combination is. So one side and not the other will be deterred, even if you were to consider an award of fees to the plaintiff as a sanction for a frivolous defense.

Also plenty of worthy suits end up losing -- any suit that goes as far as trial does so because the outcome is unclear. A plaintiff taking their case to trial and winning, on that score, had a "worthy suit," but by no means necessarily any less worthy than a plaintiff who went to trail and lost.

We already have plenty of provisions allowing judges to toss suits early in the process and impose sanctions, including attorney fees, for suits which are indeed frivolous. Going beyond that to, in effect, deem every single suit which does not prevail to be "frivolous" is several thousand steps too far IMO.
9.11.2009 6:53pm
einhverfr (mail) (www):
First History:

Rather than supplying weapons to the Iraqi opposition, Iran should encourage peace in Iraq. The US would then have no excuse to stay; thereby speeding their exit from Iraq, and leaving Iran as the preemenint power in the region.


I don't know if you noticed, but Iran was backing three sides out of four in Iraq-- backing the government, the Shiite insurgency, and various Kurdish militias. I always thought the goal was to keep the US committed in Iraq so as to ensure that those troops couldn't be redeployed into Iran.
9.11.2009 7:59pm
Angus:
Probably by using whatever methodology the relevant court uses now to compute future lost income. Since I expressly said I do not support caps on economic damages which includes lost income, I'm not sure that I understand the point of the question.
My understanding is that most states consider the lost income of a child to be $0 since the child never worked.
9.11.2009 10:14pm
CallmeaCynic:


I thought Afghanistan was the only true place we should be fighting according to liberals. Now it is not even worth it.

Eight years ago, when there was something to accomplish, yes.


You mean one year ago, when there was an election to win.
9.11.2009 10:26pm
Bruce Hayden (mail):
I don't know if you noticed, but Iran was backing three sides out of four in Iraq-- backing the government, the Shiite insurgency, and various Kurdish militias.
Come on. They on occasion supported the Sunni Arabs fighting us too. I always marveled that al Qaeda could, on occasion, get along with the Iranians. They are mortal enemies religiously, and, yet, there are documented cases of the Iranian government supplying arms to al Qaeda, et al. But, then again, the Iranians also worked to some extent with what became the Taliban against the Soviets in Afghanistan. My enemy is your enemy sort of thing.
9.11.2009 11:12pm
Bruce Hayden (mail):
I don't know why caps are always the only thing discussed. They do very little to combat the thing doctors really hate about malpractice - the unpredictability. It's not the terrible care leading to a disastrous outcome that gets paid 5 million dollars that really annoys us. It's the people who get $200,000 because the plaintiff had a bad outcome and they appear to the jury like sympathetic people badly in need of money.

It's the uncertainty that is at the root of defensive medicine - you're not being super extra thorough with testing to because you're worried other doctors would think it's the standard of care, you're doing it so that the jury has ABSOLUTELY NO EXCUSE to give someone with a bad outcome money even if they really, really want to. And the plaintiff lawyer realizes that and doesn't take the case.
I see your point there about a bunch of $200k awards for situations where bad things happened being much worse than some big verdicts where the health care provider really was negligent in terms of affecting physician care decisions.

And I think that answer to that is the sort of thing that has been mentioned here - some sort of early litigation screening by panels of doctors, etc. (Of course, you have the problem there that lawyers do not believe that doctors are really very serious about policing their profession).

But I would also argue for capping non-economic damages, because that is the place where juries can run away with a sympathetic patient/plaintiff.

The problem I see is that none of us are perfect. We all screw up, on occasion. Hopefully not very often. But maybe when we are rushed or tired. And bad things happen as a result. Dropping the level of care down to cover that is not going to help the situation, esp. because then we would ultimately have a counter movement to protect patients. And, so, I think that it is important to have mechanisms in place so that those who suffer from those lapses can recover their real damages. It makes sense to me to spread the cost of that over the entire patient load of a health care provider through his malpractice insurance. I just don't want it to be a lottery, as it has been in many states. That is bad from the other side.
9.11.2009 11:33pm
Bruce Hayden (mail):
We already have plenty of provisions allowing judges to toss suits early in the process and impose sanctions, including attorney fees, for suits which are indeed frivolous. Going beyond that to, in effect, deem every single suit which does not prevail to be "frivolous" is several thousand steps too far IMO.
Sure, if the suit was objectively frivolous. But that isn't really the issue. Besides, that again tilts the playing field in favor of the defendants in such cases, who almost never are sanctioned for their defense.

The problem that I see is that in certain types of litigation, the defense faces a much worse situation than does the plaintiff. The defense pays his own defense if he wins, and that plus damages if he loses - pretty much regardless of merit of the lawsuit. The plaintiff is in a heads I win, tails I walk away situation. And his attorneys may be in a situation where they can risk a bunch of marginal cases for the big win that pays them back well for all those marginal cases they lost.

Let us assume that a case has a 25% chance of winning. What that means is that if an attorney is able to win more than 4 times what he could earn spending his time on hourly billing on those 1/4 of his cases that he will win statistically, then it is probably to his advantage to try the cases, despite that they are marginal.
9.11.2009 11:45pm
byomtov (mail):
Are high-deductible policies illegal in Colorado?
9.12.2009 12:00pm

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Comment Policy: We reserve the right to edit or delete comments, and in extreme cases to ban commenters, at our discretion. Comments must be relevant and civil (and, especially, free of name-calling). We think of comment threads like dinner parties at our homes. If you make the party unpleasant for us or for others, we'd rather you went elsewhere. We're happy to see a wide range of viewpoints, but we want all of them to be expressed as politely as possible.

We realize that such a comment policy can never be evenly enforced, because we can't possibly monitor every comment equally well. Hundreds of comments are posted every day here, and we don't read them all. Those we read, we read with different degrees of attention, and in different moods. We try to be fair, but we make no promises.

And remember, it's a big Internet. If you think we were mistaken in removing your post (or, in extreme cases, in removing you) -- or if you prefer a more free-for-all approach -- there are surely plenty of ways you can still get your views out.