MEDICAL MALPRACTICE CAPS WORK

The New York Times reluctantly reports that tort reform in Texas has produced precisely the results its advocates predicted:

Four years after Texas voters approved a constitutional amendment limiting awards in medical malpractice lawsuits, doctors are responding as supporters predicted, arriving from all parts of the country to swell the ranks of specialists at Texas hospitals …

This does not mean, as many opponents of tort reform claim, that patients have no recourse in legitimate malpractice cases. Plaintiffs can recover economic losses of up to $1.6 million and non-economic losses of $250,000 from as many as three separate providers.   

If our masters in Washington would take a few minutes off from demagoguing SCHIP and pass serious malpractice reform on a national level, the distribution of medical providers would track patient demand rather than local legal climate, and the inflationary effects of defensive medicine would be significantly reduced.

Comments 14

  1. Marc Brown wrote:

    ‘Four years after Texas voters approved a constitutional amendment limiting awards in medical malpractice lawsuits’

    Government intervention better than free market, hey David?

    Posted 05 Oct 2007 at 5:56 am
  2. Catron wrote:

    You’re confused, Marc. The government has a duty to protect citizens from grifters, muggers, and their close cousins–greedy trial lawyers.

    You would hardly suggest that laws against armed robbery constitute government intervention in the free market. This amendment is analogous to such a law.

    Posted 05 Oct 2007 at 7:50 am
  3. Matt Horn wrote:

    This was a proposition, which means that the people of the state decided that it was something they wanted by casting their vote. I think Catron illustrates it well in the minds of Texans. Texas had become a “judicial hellhole” and was in desperate need of shielding from the machinations of trial lawyers. The Trial Lawyers swore it would have no effect on the cost of care, but it has already dropped average med-mal rates by over 20%. Our doc has never been named in any med-mal proceeding and was still paying $60K in premiums. This year he is looking at $30K. That is money that can now be spent on buying new equipment to improve the quality of care, or even hire new staff.

    Posted 05 Oct 2007 at 9:51 am
  4. Morris Berg wrote:

    “You would hardly suggest that laws against armed robbery constitute government intervention in the free market. This amendment is analogous to such a law.”

    No, Dave, it is you who is terribly confused. That is one of the most certifiably and empirically incorrect things you have ever written (and that is saying a lot). You should really read the Constitution, Federalist Papers, and/or just take a basic civics class.

    The civil courts serve the basic function of allowing redress for non-criminal infringements on our individual liberties and freedoms – i.e., torts. Open access to these venues is the default baseline in our country. Limiting such access is indeed government intervention – by definition.

    The mental gymnastics that must be neccessary to keep the ineveitable cognitive dissonance at bay and protect your ideologically driven view of reality must be very draining on your ability to make any sense at all. You could rationalize anything.

    Posted 05 Oct 2007 at 10:01 am
  5. Matt Horn wrote:

    So we should put restrictions on everyone except trial lawyers? Interesting.

    Posted 05 Oct 2007 at 10:37 am
  6. Matt wrote:

    What about that article proves that malpractice caps “work”? What are they working for?

    Insurance companies get to make more money? Probably, but is that due to caps or investment returns.

    More physicians are in Texas? Probably, but is that due to increased population in Texas, more job openings?

    More physicians in rural areas? We don’t know.

    Less malpractice? We don’t know.

    Does correlation = cause now? I would think given how rigorous Catron is in reviewing the claims of people he disagrees with, he would be equally rigorous with those he agrees with.

    Posted 05 Oct 2007 at 2:56 pm
  7. Matt wrote:

    Not to mention the fact that for a confessed libertarian, why exactly should the federal government be enacting caps on state court actions? I thought Catron wanted less govt. in healthcare?

    “You would hardly suggest that laws against armed robbery constitute government intervention in the free market. This amendment is analogous to such a law.”

    A tort action is analogous to armed robbery? In what way? Are you comparing insurance companies to the victim being mugged by someone with a gun? Is the malpractice victim the person with the gun?

    Posted 05 Oct 2007 at 2:58 pm
  8. Matt wrote:

    “Texans. Texas had become a “judicial hellhole? and was in desperate need of shielding from the machinations of trial lawyers.”

    Because the Chamber of Commerce comes up with a title does that make it true? Were Texas insurers, who have been consistently profitable over the decades, in need of further legislation to protect their profits?

    ” 20%. Our doc has never been named in any med-mal proceeding and was still paying $60K in premiums. This year he is looking at $30K. That is money that can now be spent on buying new equipment to improve the quality of care, or even hire new staff.”

    Are your doc and his insurer supposed to be guaranteed a certain income level by the public? If that’s the case, why are only they entitled to such guarantees? Why shouldn’t truck drivers be entitled to that? Why shouldn’t Wal-Mart get that guarantee?

    Posted 05 Oct 2007 at 3:01 pm
  9. scalpel wrote:

    Umm, because truck drivers are:

    1) uncommon targets for multimillion dollar pain and suffering claims by greedy trial lawyers

    2) easily replaceable

    Posted 07 Oct 2007 at 4:58 am
  10. Matt wrote:

    So your solution is to guarantee your insurer a set profit? How much are we guaranteeing them, and how much do we guarantee your malpractice premiums are set at?

    How much more often are physicians hit with multimillion dollar pain and suffering awards than truck drivers? Remember, an accident with a semi is likely to result in serious, serious injuries.

    What makes you think you’re so irreplaceable?

    Posted 07 Oct 2007 at 8:21 am
  11. Matt Horn wrote:

    Hi Matt, you bring up some good points for discussion. I would like to flesh it out with you.
    Judicial Hellhole is a standard term for a place where trial lawyers can easily manipulate a jury pool in order to get excessive awards. The jury selection process is in need of a total overhaul, but until that happens, it is up to the people to act to preserve their tort system.
    This is not about insurance company profits, other than the fact that when it costs less to insure a population, the rates tend to drop accordingly due to free market competition. Ergo, doctor’s pay less in premium and the cost of care component of their practice is reduced accordingly.
    The doc and insurer are not guaranteed anything. docs just want to be able to practice medicine without fear of a frivoulous med-mal claim. There is a direct causational effect of med-mal premiums to cost of care.
    I would also put forth that the insurance companies willingness to settle has help escalate the abuses by the trial lawyers. Trial lawyers are smart people and many know exactally what to ask for based on the merits of the case. If the cost of defense is more than the settlement offer, the insurance companies will settle. I believe that part of the coverage would allow the doctors to dispute a settlement. If that happened, the claim would have to be fought. Short term effect would raise premiums, but long term effect would be to actually identify bad docs and get them out of the medical community. I don’t believe for a minute that med-mal trial lawyers are in business to improve the level of healthcare.
    Please note that what we are talking about is NOT a piece of legislation, but an ammendment to the Texas constitution. This was voted on by the people of the state of Texas excercising self government.
    Please remember that Texas trial lawyers were the primary drivers behind the asbestosis, silicosos, and breast implant suits. All of which were suspicious at best.

    Posted 08 Oct 2007 at 11:06 am
  12. Matt wrote:

    “Judicial Hellhole is a standard term for a place where trial lawyers can easily manipulate a jury pool in order to get excessive awards. The jury selection process is in need of a total overhaul.”

    That made me chuckle. “judicial hellhole” is a term picked by large company lobbying organizations. Nothing more, nothing less. What, pray tell, is wrong with the jury selection process?

    “This is not about insurance company profits, ”

    You’re right, that’s not all it’s about it’s also about limiting the power of the individual to make a claim against corporate entities. One need only look at the primary donors behind these “reform” organizations to see that’s true.

    “The doc and insurer are not guaranteed anything. docs just want to be able to practice medicine without fear of a frivoulous med-mal claim. ”

    How does arbitrarily capping the damages of meritorious claims accomplish that goal?

    “I would also put forth that the insurance companies willingness to settle has help escalate the abuses by the trial lawyers.”

    How many insurers have you ever settled a personal injury case with? Who are these insurers that roll over so easily?

    “I don’t believe for a minute that med-mal trial lawyers are in business to improve the level of healthcare.”

    Nor should you. It’s not their job. Their job is to represent the individual, like you for example, to get compensation for the injury you suffered. That’s like saying you don’t believe physicians are really out to make sure patent cases are resolved quicker.

    “Please note that what we are talking about is NOT a piece of legislation, but an ammendment to the Texas constitution. This was voted on by the people of the state of Texas excercising self government.”

    Certainly. It’s a triumph to effective lobbying, and you have to admire the skill of the tobacco industry and the chamber of commerce in getting it done, they’d been working on it for a decade. Does it make you less likely to be a victim of malpractice? No. Does it make it harder for you to recover when you are? Absolutely. So how did you win?

    Posted 08 Oct 2007 at 5:09 pm
  13. Matt Horn wrote:

    See, I defined it so you would know how the average joe looked at it. You can chuckle, but the whole point was to define how I was referring to it per your request. You can’t tell me with a strait face that someone is truly being judged by a jury of their peers. If that were the case, the only people that should serve on med-mal juries are doctors. The people that could be contributing the most to jury systems are removed because the lawyers weed out those that they cannot manipulate. Perhaps another fix is to end exemptions from jury duty and random assignment of jurors with no lawyers able to cherry pick the pool.

    If you look at prop 12, all actual damages are untouched. It specifically addresses punitive damages and lawyer awards. You are probably going to tell me that a $20mm award for “pain and suffering” is appropriate? Only if you are a lawyer looking for a fat payday. How about our lovely barristers that bring med-mal claims against OBs for genetic defects like Down’s Syndrome. It is not about the insurance company profits, it is about the excessive lawyer profits for suspect activity. Every one of those lawyers should be disbarred.

    I have seen med mal carriers settling even when there is no merit if the cost of defense is more than the cost of settlement. E&O carriers do it too. I have seen it from the inside out.

    I do believe doctors are in business to improve the health of the population as a whole. I do not believe med-mal lawyers are in it for their clients, but in it for a payday. Also from personal experience.

    Prop 12 passage was a great day for the people of Texas, when we loosened the strangling grip of lawyers from the throat of the medical system. The abuses by med-mal lawyers are staggering. There was no impact on the injured to recieve damages, it just stopped the lawyers from bumping up their payday. We need good med-mal attorneys, and prop 12 was designed to make sure only the good ones stuck around.

    Posted 09 Oct 2007 at 12:32 pm
  14. Matt wrote:

    I know how you were defining it. I see the average joe when they get hurt and the other side’s insurer jerks them around, and because they believe this bit of brilliant marketing, they think no matter what their injury is that a jury will give them millions. I deal with their expectations daily.

    As for a “jury of their peers”, I didn’t know that was defined solely by the industry you worked in. In that case, let’s let insurance adjusters hear all cases where docs sue for failure to properly reimburse. Let’s have contractors hear the case you file against the guy who built your house when it’s built improperly. Let’s just have people who drive semis hear your case when one claims it was you who ran the light and not him.

    You do know lawyers only get a set number of preemptory strikes don’t you? It’s not unlimited. The rest is up to the judge as to whether there is cause. I’m guessing you’ve not had much involvement with the process based on your comments. Lawyers don’t “cherry pick” the pool. The pool is chosen by the county clerk from the list of voters, then they draw out of that larger group randomly until they are down to 12 BOTH sides are either satisfied with or stuck with after all the challenges are gone.

    “If you look at prop 12, all actual damages are untouched. It specifically addresses punitive damages and lawyer awards. ”

    Punitive damages are so rarely awarded in med mal that it’s a non-factor. As for lawyer awards, do you ever wonder why only one side is limited in what it can pay it’s lawyer? How come the defense can pay as much as it wants? And which side are you more likely to be on as the patient?

    As for pain and suffering awards, tell me, what case are you referring to where a victim was paid $20 million for pain and suffering. How often does this happen that an insurance company writes that check, much less that amount is awarded?

    ” It is not about the insurance company profits, it is about the excessive lawyer profits for suspect activity”

    If that’s the case, why are meritorious cases capped? Why are only the plaintiff’s lawyers attorneys fees capped?

    “I have seen med mal carriers settling even when there is no merit if the cost of defense is more than the cost of settlement. E&O carriers do it too. I have seen it from the inside out”

    Really? What carriers write checks for millions when cases have no merit? Even hundreds of thousands? Please, tell me their names.

    “I do believe doctors are in business to improve the health of the population as a whole. I do not believe med-mal lawyers are in it for their clients, but in it for a payday. Also from personal experience.”

    If doctors are in business to improve the health of the population as a whole, why would all their money be spent on capping what legit victims of malpractice can recover, rather than improving the delivery of healthcare? If the lawyers are just out to get money, why wouldn’t they work for the defense? They are out no expenses and get paid win or lose.

    ” There was no impact on the injured to recieve damages, it just stopped the lawyers from bumping up their payday. We need good med-mal attorneys, and prop 12 was designed to make sure only the good ones stuck around.”

    If there was no impact on the injured, then what do the caps do? Unless you’re an insurer, how did this help you at all? How does lowering the plaintiff’s ability to hire the best at an agreed price make sure the good ones stick around and work for the plaintiff, when they can negotiate whatever price they want and work for the defense?

    Posted 09 Oct 2007 at 3:09 pm

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