So, here comes Private Pigg with a great post on the topic, "Tort Reform: Bad Idea":
Well, some people still think tort reform is a good idea. And some people even think it is a good idea in order to fix our health care system (talk about a red herring). And some people even feel the need to shoot off their mouth about it without being willing to defend it, other than to link to other people who agree with them without bothering to produce any supporting data themselves.Okay, I just went over to Cao’s Blog to check the debate, and Private Pigg just eviscerates her - I mean, it's just merciless. Read the whole thing. You know you've won when the other side attacks you as a "liberal":
That’s what happened over at Cao’s blog. In drafting a post with which I generally agree, Cao threw out the following with regard to health care reform: “My point was that tort reform should be included, that the free market should be allowed to work, and government should get out of the way.”
So I took umbrage with that sentence (specifically, the first thought), asked for some empirical data to support it, received a link to a website that “generally” agrees with tort reform (not necessarily specific to health care reform), demanded actual and specific data from the blogger and not just random, general links, received a link to a lawsuit filed against Best Buy, cried foul, and was subsequently informed that my comments would no longer be posted.
Here's a few key passages:
Private Pigg:
"Tort reform is a loser. That a liberal’s argument. If you are for the market, then tort reform is not necessary. Juries decide damages. They are not professionals. They are average citizens. I have yet to hear even a coherent argument in favor of tort reform and to what it supposedly will cure."
Cao:
From the American Tort Reform Association:“Lawsuit abuse continues to have a negative impact on the nation’s economy, as well as many state economies,” explained ATRF president Tiger Joyce in a news release. “Every dollar spent defending against a speculative lawsuit is a dollar that won’t be spent on research and development, capital investment, worker training or job creation. Unfortunately for those living in Hellholes jurisdictions during this economic downturn, it can be that much harder to find or keep a job and get critical health care services as employers and doctors are driven away by the threat of costly litigation.”
LOL…that doesn’t sound like a liberal argument to me, and I doubt that it sounds like a liberal argument to capitalists who understand that new medicine and technologies cost money. Yeah, how dare those evil companies who seek profit a) pay their employees b) reinvest profit into R&D, new products and technologies and c) want to improve what they’re doing at all!
Of course, with all the lawyers in government who’ve never had a day job, government helps the Hellhole jurisdictions thrive.
Private Pigg:
Any empirical data to back that up? It is absurd to suggest that health care services have their costs increased because of lawsuits. Where are all the lawsuits? Remember, a lawyer who takes a frivolous case and gets blanked gets zero for his time and effort, too, so the idea that there are just this multitude of frivolous lawsuits out there is ridiculous ....
The market, and our ability to redress our grievances in court before a jury of our peers, demands the governments stay out of the peoples’ right to litigate.
Cao:
Ask the American Tort Reform Association which I not only quoted but linked to. Unless, that is, you’re not really interested in finding the information you claim you’re seeking and instead are in the business of kill the messenger/Alinsky tactics…as evidenced from your ignorant comment and your unwillingness to follow the link to what I already provided ....
Because you demanded that I provide you with empirical data and I don’t think thats my job - YOU FIGURE IT OUT, lefty! Not only do you want others to bear the burden of oppressive taxation, you want others to do the work and the thinking for you.
Private Pigg:
You clearly have no personal knowledge of the legal system. You just cite random websites for a proposition someone has told you is good. That’s why you cite a suit against Best Buy as some justification for tort reform to bring down health care costs. Brilliant.
And, yes, I will ask you to prove it, because you made the claim that tort reform was necessary. So cite me something that actually shows that health care costs across the country are up because of frivolous lawsuits. Good luck with that.
Cao:
As I said, go to the websites I referenced.
There are numerous white papers available; but you’re too dumb or lazy or both–to acknowledge it. The examples I cited were numerous, and again, you’re either too dumb or lazy or both-to acknowledge it.
But you know what? Your stupidity is neither my responsibility or my problem.
Idiot.
You have now officially broken two of my rules; no more comments from you will be published.
Now that's an entertaining debate!
Cao's logical fallacy is argumentum ad verecundiam. And she clearly doesn't know what she's talking about, so she just keeps referring back to her websites. When pressed by Private Pigg, Cao first calls him a "liberal." Then she calls him an "idiot" and tells him he doesn't know how to think. Then she imports the "rules" to the debate, and alleges that Private Pigg's "violated" them. That gets him banned from the comments.
As is obvious, the real reason he's banned is he makes Cao look like a mountebank.
Good stuff all around.
Check Private Pigg's blog for more good stuff!
Related: Denver Post, "Health Care Fact Check: Tort Reform."
16 comments:
As a libertarian, part of me agrees with Private Pigg, at least ss it pertains to the "free market."
Problem is, trial lawyers aren't really a free market operation anymore, as the NTLA is among the largest contributors, if not THE largest, to the DNC.
Besides, jurors today are usually marginally educated, at best (picture Peggy Bundy perched on sofa scarfing Bon Bons while opening her jury summons) and then blissfully awarding millions with little or no regard for the financial carnage left in the wake-much like elderly drivers go about their business, totally oblivious to the wreckage they leave behind.
Tort reform is one of several "musts" that have to happen if we are to plug the holes in the roof our nation's health care system.
Merely blowing up the building to plug said holes isn't going to cut it.
-Dave
Like Don D I havent gotten into the whole tort reform much because I do not fully understand it.
I will say though that lawyers do get paid if they don't think they will get a percentage of the take.
All I can really say is that I have known a number of doctors and they all say the same thing about how costs are so high because of law suits yadda yadda.
Yet these same doctors always have the largest houses with a vacation house or two and a fleet of cars all while working 4 days a week.
So although I am against government run health care I just don't really buy into Tort reform as an alternative either. Its been a dummy straw man argument for too long.
Malpractice insurance is forcing many doctors to alter the way they practice. My favorite pediatrician had to become part of a very large group of peds because his malpractice insurance premium was so high.
Not only that, but doctors are more inclined to put you through sometimes excessive and unnecessary testing to cover their ass for fear of a lawsuit. I, personally, was subjected to this behavior when one of my docs felt that I should be admitted to the hospital and put under general anesthesia for a procedure that could be done (and in fact I have HAD done) in the doctors office in the past.
I don't think that tort reform is a horrible thing, and there are many parts to it. Limits on damages, limits on contingency fees, loser pays. I'm sure that there are objections to all of it from one side or another.
I know a guy who seems to sue people for a living - he doesn't work, he lives off of his awards. And the awards are basically automatic because the insurance co's just pay out hoping to avoid the time and expense of a court appearance.
The discussion of this issue is a good thing. We need to toss these ideas around.
Guys, I'm mostly digging how Cao totally lost it. That said, Private Pigg's an attorney, and I'm giving him the benefit of the doubt ...
Dr. D: Thanks for the post! I appreciate it. But don't take my word for it - it makes perfect sense!
Dave: "jurors today are usually marginally educated."
I suppose that can be true. It depends on the jurisdiction. But what does that matter? These jurors are voters, also marginally educated. In any event, tort reform is asking the government to decide before-hand what a case's maximum value is. The "uneducated juror" sits and actually listens to the case - and not just the plaintiff, mind you. A qualified defense attorney, well-paid by the insurance company, has the same opportunity to convince the jury that the case is frivolous, or that no real injury occurred, or, the best defense, that the doctor was reasonable and followed the standard of care, etc. It's like we pretend that juries are just being subjected to plaintiff lawyers' propaganda, and then some runaway judge interprets all the law in favor of the plaintiff, and then the jury, with nothing to do but sit and scratch their uneducated ass, gets off on awarding $1 billion. It doesn't work that way.
Besides, excessive verdicts are actually appealable: the appellate courts can overturn a verdict (and remand for a new trial) that is clearly not in line with the facts of the cases. Thus, for any verdict to come into existence, and stand, a jury of your peers must hear both sides of the case, must follow the law, must find that the doctor did not act reasonably and did not follow the prevailing standard of care (which can only be proven by ANOTHER doctor taking the stand and telling the jury that the defendant doctor did not do what a normal doctor would do in his shoes), must give a reasonable verdict that is in line with the specific facts of the case, and said verdict must withstand an appeal (or multiple appeals).
And practically speaking, it makes no free market sense to ask legislators to cap all damages. It makes much more sense to let the unwashed masses make the decision after they have heard the specifics of the case. Are you a libertarian or not?
Besides, the studies show that costs related to litigation are marginal, at best.
I challenge anyone to cite me a reckless, frivolous case that has increased the costs of your medical care. Even if you find one... it's just one.
But Dave, you seem to be implying that maybe professional juries would suit your taste more? Maybe. It would be preferable to a government-mandated cap, that's for sure.
I'm not sure why trial lawyers donating to the DNC makes them no longer free market. With Republicans talking about tort reform, is it any wonder?
Beltain America - "I will say though that lawyers do get paid if they don't think they will get a percentage of the take."
I'm not sure I understand. Did you mean "don't" get paid? Just in case: Personal injury cases - the ones with multi-million dollar verdicts - are done on a contingency basis. No plaintiff agrees to be liable to his attorney for $200,000 in costs if they lose the case. The attorney takes the case and only gets paid if he wins (some "costs" are obviously reimbursed - filing fees, etc.). Thus, the majority of "frivolous" claims never see the light of day, as most attorneys won't take the risk attendant in advancing such large amounts of costs when the case is a stinker.
From what I see, the present tort system leverages class envy within its juries to produce inequitable outcomes, that have little or no relationship to how negligent or unscrupulous a defendant has been ... but exhibit a significant relationship to defendant pocket depth.
That certainly has a chilling effect upon the economic pursuit of happiness that extends beyond the direct costs ... and that hurts us all, when it is not justified by the need.
In the health care field, it leads to doctors moving away from OB/GYN and other fields where the risk of even an unavoidable negative outcome is high, especially when the insurance costs climb ... and it leads to wasteful "defensive medicine".
General aviation, OTOH, was revitalized from a near-death state in the late 1990's in part because of the liability limits instituted by the 1994 General Aviation Revitalization Act.
In a conversation with my doctor, who I really like and hope to keep, he stated that at least 60 percent of all test are unnecessary and meant to protect themselves from law suits. Most doctors not unlike most lawyers desire to do a good job for their patients/clients.
Lets face facts here, Doctors are working in a field that has far too many variables when it comes to each individual's diagnosis and treatment. Doctors are usually well trained individuals who have to make a series of guesses, because of individual variability to certain treatments and drugs, as to a treatment that fits each patients. It would be nice if we were all alike in our mental and physiological make up, but that is not what actually faces doctors.
I suspect that you can find any set of doctors as in any other field, who disagree with another doctor's approach. I used to love watching professors in various disciplines go at each other. It really got quite nasty.
It is too bad we cannot use the same process to weed out bad lawyers to the point that they carry malpractice insurance. The legal system is filled with people and governments who were poorly served by their attorneys. If we have a profession where we cannot find out what the definition of "is" is then maybe we have one that is not serving its designed purpose. Does anyone believe that a lawyer can write any legal brief that cannot be ripped apart by any other lawyer?
I would also posit that it has been a long time since we were judged by our peers. Especially since we have jurors being selected by groups who specialize in that selection. I am not sure that "Due Process" has not turned into the money due to the process. NOTE: I did not say justice because the legal profession does not promise that.
It would be interesting to see lawyers judged by the same standards that they apply to every other profession. I am not sure they would like it very well nor do I believe they could stand the scrutiny.
What we need is a system that removed bad doctors as well as bad lawyers for that matter and does not add to the costs that everyone else has to pay in that system. The one we currently have rewards one group, no matter how poorly they perform their function, at the expense of the other.
Obviously, no one here as been in the
Bronx Supreme Court where everyone walks out a millionaire.
The enormous cost of malpractice insurance does indeed raise medical costs across the board and results in "defensive medicine," giving treatments and medications not for medical reasons, but for court reasons.
Screw the legal profession. Without tort reform any health care reform is meaningless. Lawyers literally have a license to steal, and Private Pigg -- you're full of it.
"but exhibit a significant relationship to defendant pocket depth."
Except that a jury is not allowed to know the insurance, the type of insurance, or the policy limits of said insurance.
Further, when we are talking about punishing a bad actor for intentional conduct (which is the basis for the really huge awards), of course the pocket book of the offender becomes somewhat relevant. Does it punish me to get hit for $100,000? You better believe it. Does McDonalds care about $100,000? No. It is more expensive to alter their practices throughout their thousands and thousands of stores around the world than to simply continue to act bad and simply get hit with a lawsuit every once in awhile - until the lawsuit is $10 million. Then McDonalds will change its procedures that are harming people.
"at least 60 percent of all test are unnecessary and meant to protect themselves from law suits"
Your doctor can tell you what he wants, but the empirical data doesn't back it up. And the standard is negligence. Doing unnecessary tests will not protect you from being negligent. If you failed to find something, but the ordinary doctors in your area would have found it, you are negligent. It's not just "hey you should have done more tests," it's "hey, the other doctors in your area would have caught the problem because they all do A or B and you failed to do it." You are compared to your peers, not to some layperson. So if all the other doctors are doing certain tests, you better do them, too, because that is what defines the proper standard of care in your area.
Stogie - The empirical data does not back up your claims. Why is it that I can cite studies that show the opposite of what you say, but you can retort with "you are full of it" and just proclaim that the studies cited are wrong - simply because you say so.
If anyone has actually been in the courtroom during a med mal case, and heard the evidence, you quickly realize that the only time a doctor is found negligent is when he did something outside of the standard of care - the standard of care that is determined by the other doctors in his geographical region. The jury can't decide for themselves that the doctor fucked up. The same standard is held for lawyers (who hold malpractice insurance) and any other professional who provides services. But when all professionals are held to the standard of care evidenced in their area, the only ones who have their costs being increased are doctors? What about lawyers? What about any other service industry that is ripe to be sued for negligence?
You get ripped off in your health care because the majority of doctors over-charge. Ever noticed an insurance company that pays your medical bills often will only pay the doctor 50% of what the doctor has billed? Same with Medicare. Why would a doctor accept a 50% cut in his bills? Would you accept a 50% wage cut and keep working - only if the 50% wage cut was the actual value of your services. You get over-charged. Look at a bill. Be at the doctor for one hour and wonder why your bill is $1000. Your attorney bill would be $150 for the same period.
Tort reform is a red herring. And I've cited the studies on my post. If you care to disagree with them, please cite me some empirical data that backs your claim.
Private Prigg, if tort reform is not a good idea, then why are the malpractice rates so high? It is really a zero sum gain or is there some middle ground that can be reached. I'd like to think that we all agree that blowing up the medical system is not the way to go about it but I'm an English teacher not a lawyer so this is out of my depth.
"then why are the malpractice rates so high"
Because of the potential. Ever looked at the malpractice rates for attorneys?
Ever wondered why young drivers have higher insurance than middle-aged drivers? Why people who have dangerous jobs have higher insurance premiums than those in safe occupations?
It is nothing but risk assessment. Doctors can, potentially, cause people irreparable harm, and even death. So their rates are higher than other professions.
"As many as 98,000 people die every year because of medical errors." How many dies because of their lawyers, or engineers, or dentists? It's a high-risk, high-reward business.
And only a fraction of the people that are hurt ever bring a claim, too.
Some contrary information and studies:
http://ezinearticles.com/?The-Impact-of-High-Legal-Costs-on-Healthcare&id=384297
http://pajamasmedia.com/blog/tort-reform-aids-health-lowers-cost-why-isnt-it-in-obamacare/
http://www.triallawyersinc.com/healthcare/hc01.html
I would bet that if I dug deep enough I could find a number of studies and articles that would vary from the couple, basically written by lawyers, of studies that you seem to be citing.
It is far more complex than most people think.
You only answered half my question.
The first link gives mostly opinion, cites a dollar amount spent ($10 billion - which, by the way, is actually a third of what I cited), but does not mention a single study that shows that legal fees actually increase costs. $10 billion in costs, by the way, works out to 0.005% of total health care costs. Whoa.
The second link cites a PriceWaterhouse study for the fact that "10% of the cost" in health care is from malpractice suits. A deeper look, however, shows that the actual study says that 10% of costs are due to defensive medicine, which is "sometimes" practiced because of liability concerns, but also because doctors get paid more for extra tests, and because some doctors believe that more tests are actually better (the study does not differentiate between the three in terms of which is more likely to be the reason - they are all cited equally). So the actual study cites three things that cause doctors to practice defensive medicine, one of those things being liability concerns, with that three-pronged total being 10%. Not surprisingly, studies that attempt to just show the costs for defensive medicine due to liability concerns have the cost at 1/10 to 1/7 of that (including the study you cited in the first link). The study also cites "processing claims forms" as just a big of a waste of money as all of the three reasons for the defensive medicine, combined.
The third link again states the medical liability was responsible for "10%" of the tort tax. The footnotes, however, reveal the actual medical malpractice cost to be $27 billion, which is 0.0135% of the total cost of health care in the US.
Vegas - Maybe there is some middle ground, but if it involves bureaucrats deciding some blanket maximum for cases without letting local juries hear the cases and make the determination based on the specifics of the case, then I'm against it.
It makes no more sense than letting the government decide other aspects of our life, or other aspects of the market.
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