FLEA: ANOTHER ARGUMENT FOR TORT REFORM?

Much of the reaction to Flea’s case at Kevin, MD, GruntDoc, and a variety of other blogs has focused on its implications for medical blogging or on the doctor’s poor judgment. But this sad tale also begs the following question: Would the episode have happened at all if Flea’s medical practice were in Texas?  

It’s conceivable that, in a state where non-economic damages are capped at $250,000, the parents of Flea’s patient may not have been able to find an attorney willing to take their case. Had they been unable to find a lawyer, Flea would have had no trial to live-blog and there would be no pall hanging over the medical blogosphere. 

Eric Turkewitz is certainly correct when he calls this episode a tragedy, but its scope goes far beyond Flea and the parents of his unfortunate patient. It will contribute to a lawsuit abuse problem already out of control, one that has already done serious damage to American health care. 

Flea’s case wasn’t settled on the merits. It was settled because of a few intemperate posts on his blog. Now, there will be lawyers and paralegals all across the country trolling the web for blog posts by anyone connected with a medical defendant. Will they be doing so in states where tort reform has been enacted? I doubt it.

Comments 8

  1. Anon wrote:

    What tort “reform” proposal would keep this evidence out? Your claim makes no sense. Lawyers will still be looking for any evidence they can find regarding the case.

    You seem to be saying that it’s a good thing that some lobbyists decided to arbitrarily cap the value of cases they’ve never seen the evidence on, thus making it harder for individuals to find attorneys, and allowing insurers to make more, is a wonderful thing. And maybe you think that’s true, but that has nothing to do with this case in particular.

    How do you know it wasn’t settled on the merits? Do you know the merits? I’m guessing not. Cases settle all the time mid-trial.

    Posted 31 May 2007 at 4:55 pm
  2. Catron wrote:

    My point was not that tort reform might have kept the evidence out, but rather that it might have prevented the case from being brought in the first place.

    As to the merits, I think it’s pretty obvious that the sudden settlement, coming right after the revelation about the blog, was about the impression Flea’s posts would have made on the jury.

    Posted 31 May 2007 at 5:42 pm
  3. Anon wrote:

    So since you don’t know the merits of the case, why would it be a good thing if a person who was the victim of negligence was unable to obtain counsel to bring a legitimate suit? How does that further the cause of individual freedom, which you as a professed libertarian should support?

    The settlement says nothing about the merits, because we have no idea what evidence had been put on at that point. It may say something as to the motivation for settling, but it says little about the merits.

    Posted 31 May 2007 at 9:53 pm
  4. Anon wrote:

    By the way, here’s a state that is seeing reduced rates without enacting “reform”. I guess we can conclude then that the lack of “reform” results in lowered insurance rates? Using Heritage’s logic of course:

    http://www.dayontorts.com/tort-reform-svmic-lowers-rates.html

    Posted 31 May 2007 at 10:24 pm
  5. Catron wrote:

    Why would it be a good thing if a person was … unable to obtain counsel to bring a legitimate suit?

    Reputable attorneys will take a “legitimate” case, even in a state with a non-economic cap, because there is a good possibility of winning.

    It is frivolous cases that will have fewer takers. Those cases, because they are long shots, are only attractive due to the possibility (albeit remote) of a huge jackpot at the end of the rainbow.

    Posted 01 Jun 2007 at 8:09 am
  6. Anon wrote:

    No, they won’t. It’s simple economics. A medical malpractice case costs tens of thousands to try. You’re entitled to recover medical bills, lost wages, and pain and suffering. If you’re somenoe who doesn’t have a job, such as an elderly person or a child, with the risks involved, it doesn’t make economic sense for the attorney, reputable or not. And really, it doesn’t make much sense for the client, who even if there wasn’t an attorney’s fee, would essentially be getting an award that goes back to medical providers or their health insurer, and for the case expenses of their trial. They’re better off just filing bankruptcy and discharging their medical debt.

    You’ve got to be a pretty brave lawyer to consistently spend that much on dog cases in the hope that you’ll find a person injured that severely, then convince a jury, who is inclined to back the doctor anyway, to find in your favor, plus then hope the doctor has sufficient insurance to pay the award, plus hope you don’t get turned over on appeal.

    All a cap does is hurt those who are most grievously injured who a jury finds DOES have a case. That doesn’t make any sense to cap those cases.

    Tell me, how do you square your libertarian leanings with your belief in an arbitrary cap on damages without regard to the merits of the case?

    Posted 01 Jun 2007 at 2:06 pm
  7. Catron wrote:

    Libertarianism doesn’t preclude laws that protect society from the ill-effects of predatory behavior by the unscrupulous. No rational Libertarian would argue that the government can’t pass laws to prevent confidence men from bilking little old ladies. It makes no more sense to say that it can’t similarly protect physicians, insurance companies, and the health care system at large from greedy lawyers.

    Posted 02 Jun 2007 at 6:16 am
  8. Anon wrote:

    At this point, it’s clear you’ve adopted a belief which all the facts in the world won’t allow you to deviate from.

    The poor helpless insurance companies – how do they get by? You act as if the lawyers don’t represent an injured party. Do you ever think about them while you’re crying that the insurer has only a 17% net profit when it could have 25%? You do know that there are bad physicians and insurance companies, don’t you?

    Your embrace of big government solutions over individual rights, and your trust of legislators and lobbyists over your fellow citizen belies any claim you have to a libertarian position.

    Posted 02 Jun 2007 at 1:40 pm

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