CuriousJD, your reasoning is disingenuous and, in effect, constitutes misdirection. Do you have EVIDENCE that any of the claims NOT brought (i.e., the reduction in suits noted) are against any of the physicians you mentioned, or for any of the offenses you mentioned? No, of course you don’t– yet you see nothing wrong with speculating in order to instill fear in people and perpetuate the ATLA mentality. This is logically fallacious on your part, and having been to law school, you very well know this.

Point of fact: part of tort reform IS to reduce the number of claims being filed, as a rational analysis will lead one to conclude that numerous frivolous claims are being filed (i.e., claims which contain no negligence); this can be concluded both from the fact that 80% of cases are found in favor of the physician/hospital, as well as the fact that studies have shown that over 70% of judgments rendered for the plaintiff in med-mal cases contained NO MALPRACTICE as determined by expert panels consisting of judges, lawyers and doctors. Do the math.

Even if we assume that these numbers are off (i.e., that juries “get it wrong” in those cases where they find for the defendant, and that the study’s data was flawed) by 50%, that’s still a HELL of a lot of frivolous, meritless claims being filed; any meaningful tort reform would of necessity change the legal dynamic that compels (or allows) attorneys to file these suits (and which makes it finanically desirable for them to do so, or at least makes it NOT financially ruinous). If this makes attorneys more selective about which cases they take, then so be it– that’s how it should’ve always been anyway.

You said:

“I’m sorry – I thought the point of tort reform was because physicians couldn’t afford insurance and were having to leave the practice (although the GAO debunked all those claims). I didn’t realize it was so insurers could make another $40 million. Why don’t we pass a national insurer profit protection act – oh wait, that’s Bush’s legislation.”

I say:

Yes, it IS because physicians are being hit hard by insurance costs (I hesitate to say “can’t afford insurance” because you’ll then launch into your “but they still make an average of $190K spiel– spare me). However, the reasons for rising insurance costs are multifactorial– part of it undoubtedly lies with insurance companies and part of it lies with our litigation system. To assert otherwise is intellectually dishonest. It behooves us, then, to address both facets of the issue, not just one of them (and I will agree that not enough is being done on the insurance reform side). Tort reform is not “so that insurance companies will be able to pocket another $40M”, but rather so that (ideally), they will realize savings which they will pass along to their customers; I am fully in favor of a statute of limitations on caps (say, 5-7 years) so as to ascertain their efficacy. If proven ineffectual in cutting rates– or at least slowing the rate of increase of premiums– then they should be undone. But at some point we have to throw up a trial balloon and stop speculating, whatever our course of action.

You said:

“You accuse me of speculating, but that’s what the whole tort reform movement is based on. Scare tactics and speculation. In every state where there is a “crisis”, it turns out that claims have remained consistent, payouts have remained consistent or track medical inflation, and doctors are not leaving, or not leaving in any greater numbers than those states that already have tort “reform.” So how come those numbers, which physicians swallow without question, are OK to put out, but my own “speculation” is not?”

I say:

What about claims made to insurance companies? Have those “remained consistent” as well over the past 15 years? Doubtful. Surely you’re aware that it’s too often the threat of litigation, as opposed to the presence of any real malpractice, that forces an insurers hand and compels them to settle out of court. Without an analysis that includes the numbers of claims made (and the money paid out to claims) in addition to suits filed and judgments awarded, this is all lovely speculation. To date, I’ve NEVER seen an honest analysis of this issue from “pro-lawyer” sources that took into account claims as well as suits, and I don’t expect that to change.

It’s like these idiots who point out that the nation’s teenage birth rate hasn’t increased THAT much since 1960, but conveniently discards the 2-3 million abortions performed annually– it’s disingenuous.

You said:

“As I’ve said a hundred times, filing frivolous med mal cases is probably the worst way for a plaintiff’s lawyer to make a living. They are far more expensive than most plaintiff’s cases, and you lose far more often.”

I say:

But when you win, you can recoup those losses instantly; couple this with the fact that medical cases typically involve injury/disability/damage, and you will AT THE VERY LEAST have a chance of convincing a jury to find in favor of your client based on emotional appeals and suggestibility as opposed to the medical facts (which I believe lay people are not qualified to decide anyway– judges, lawyers, and physicians should do this). So I don’t believe that there’s quite the amount of disincentive that you imply; if there were, you wouldn’t see firms constantly trolling for med-mal cases in the media, would you? Wouldn’t they just put their names in the yellow pages and wait for the legit clients to seek THEM out? Seems that would be the case…

Btw, the “study” I made an oblique reference to did NOT just find that 70+% of cases found in favor of the plaintiff contained no actual malpractice, it ALSO found that over 75% of the victims of ACTUAL malpractice do not get compensated (i.e., they either do not bring a suit for whatever reasons– feel free to speculate as to the fact that they’re likely the impecunious, as it makes for good theater– or they do not win the suits they bring); this can be attributed to numerous things, though any such attribution would admittedly be speculation on EITHER of our parts– you’d say that it’s because they’re poor or intimidated by the system or the current anti-medmal backlash, and I could just as easily say that it’s because these victims of ACTUAL malpractice likely have sustained injuries that are NOT as visible and/or grave as the plaintiffs that typically find their way to the courthouse. This can lessen the ability of an attorney to play on the sympathies of a jury and will thus cause his effective “burden of proof” to be much higher.

Still, it’s all speculation, like I said. The study was fairly recent (surely you’ve seen similar stats quoted?), and came out of a reputable institution– Harvard School of Public Health or Yale, perhaps; in any event, I can’t be arsed to go digging for it.

Anonymous,

1. You say “not enough is being done on the insurance side.” NOTHING is being done on the insurance side. Look at Bush’s legislation, and look at most state legislation. What do you see being done on the insurance side? Anything? All of these claims of runaway litigation are taken at face value but once caps are passed, no one take another look. It’s as if it’s forgotten now – at least until the next economic downturn. And then these same claims will be dredged up just like last time. Many of those states that enacted tort reform the last time are now getting pressure to make it even more draconian.

2. You put out some fine ideas – sunset clauses. But that’s not what’s being enacted. You don’t have to wait 5 years. The nation’s largest med mal insurer has already said, in a letter to the TX Dept. of Insurance, that caps will affect less than 1% of their losses.

3. Claims made don’t matter as much as payouts – actual losses. And in states where that info is public, it’s remained consistent or ran in line with the rate of medical inflation and general inflation.

4. Of course, you forget that the average payout in a med mal case is about $40,000. I realize they only publish the multi-million dollar verdicts to you guys, but that’s a tiny, tiny fraction of the cases. There are probably about as many multi-million dollar verdicts as there are physicians with a substance abuse problem. Which ones make the news more often – the physicians who don’t do anything wrong or those who are drunk during surgery?

5. Your complaint about actual malpractice not getting compensated is not a complaint with the legal system or lawyers. It’s a complaint about public policy. If you’re advocating no-fault, then do so. But that’s not what is on the table. The system is serving those who have been legitimately harmed and want compensation for their harm. It helps them pay their medical bills, it helps them with their future medicals, and it attempts to compensate them for the quality of life they have lost.

6. Jurors aren’t stupid. They are people, some very conservative, many very skeptical. They are not sipmletons waiting to be tricked by the first smooth talking lawyer that comes along. They are people just like you.

7. One other thing. Insurers know all these statistics. They have the information on claims made, claims paid, everything. They know how much every doctor whose bill has ever been submitted in any case charges for services. They are an information business, and they pool their information. They are not helpless at the hands of rabid plaintiff’s lawyers. They could easily open that information fully to all of us so we could have a fair debate. But they won’t. Ever wonder why?

8. Health care has huge financial issues, but for some reason the only cure seems to be by further harming those already injured. And it’s getting ready to get worse when Bush cuts Medicaid.