Advantages of Tort Reforms to the Medical Community

[Kevin77]

The HB4 bill passed by the Texas state legislature addressed issues such as limits on noneconomic damages; product liability reform; punitive damages; medical liability reform joint and several liability; and class action reform. The Texan medical community have greatly benefited from the reforms made to the Judicial System. It is evident in the following events that took place after the amendments:

· The American Medical Association dropped Texas from its list of states in medical liability crisis (Houston Chronicle, 5/17/05).

· Physician recruitment and retention are up, particularly in high risk specialties whereas the malpractice claims are down (Houston Chronicle, 5/17/05).

· The five largest Texas insurers cut rates, which will save doctors about $50 million, according to the AMA (Houston Chronicle, 5/17/05).

· Texas Medical Liability Trust, the state's largest liability carrier, reduced its premiums by 17 percent (Houston Chronicle, 5/17/05).

· Health Care Indemnity, the state's largest carrier for hospitals, cut rates by 15 percent in 2004 (Associated Press, 2/16/05).

· American Physicians Insurance Exchange and The Doctor's Company also reduced premiums (Associated Press, 2/16/05).

· The American Physicians Insurance Exchange saw a $3.5 million reduction in premiums for Texas physicians in 2005. In addition, beginning May 1, 2005, 2,2000 of the 3,500 physicians insured by the company would see an average drop of 5 percent in their premiums (The Heartland Institute, 5/1/05).

All the above events prove that there has been a positive impact of the Tort Reforms on the Texan economy. Texans for Lawsuit Reforms have been active in tort reforms which make the judicial system, equally fair and balanced to everyone in the society. Founded by Mr. Dick Weekley, the organization’s objective is to restore litigation to its traditional and appropriate role in our society.

[guyser]

Ah wonderful , the little guy gets screwed again.

Lets cheer !

[Pliny]

I don't know what old guyser is talking about but it sounds like the typical Canadian response concerning any other medical system than the Canadian healthcare system. Complaining about the American system, ignoring the failings of the Canadian system and offering no real solutions to the high cost of medical care throughout the world.

It sounds like although doctor retention is up you will be losing a few lawyers. Not a bad thing really.

I will have to check out Dick Weekley a little further.

[guyser]

I don't know what old guyser is talking about but it sounds like the typical Canadian response concerning any other medical system than the Canadian healthcare system.

Sorry pliny but I think a little deeper than you. Being involved in liability insurance I have to think I might have a little more insight.

Estimates vary, but 250,000 people are killed by Dr's mistakes in the US. 7000 die from illegible prescriptions each year.

Dr's E&O Liability insurance is sky high in the US because they screw up . The Docs get paid big bucks (rightly) and pay big premiums to be insured.

So the answer is to limit what the patient can sue for? Like I said, the little guy gets screwed.

As for me, reform the medical community and weed out the idiots but that would be so wrong, lets just let them make more mistakes and limit the actions the public may seek.

Of course if you lived in the US perhaps the lawyer telling you your childs suit will only net X amount since there is a cap on these types of suits will make you happy.

Edit: http://www.joyfulaging.com/iatrogenic.htm

...and there is plenty more....

Edited July 3, 2008 by guyser

[Pliny]

Sorry pliny but I think a little deeper than you. Being involved in liability insurance I have to think I might have a little more insight.

Estimates vary, but 250,000 people are killed by Dr's mistakes in the US. 7000 die from illegible prescriptions each year.

Dr's E&O Liability insurance is sky high in the US because they screw up . The Docs get paid big bucks (rightly) and pay big premiums to be insured.

So the answer is to limit what the patient can sue for? Like I said, the little guy gets screwed.

As for me, reform the medical community and weed out the idiots but that would be so wrong, lets just let them make more mistakes and limit the actions the public may seek.

Of course if you lived in the US perhaps the lawyer telling you your childs suit will only net X amount since there is a cap on these types of suits will make you happy.

Edit: http://www.joyfulaging.com/iatrogenic.htm

...and there is plenty more....

Being involved in liability insurance you have a vested interest. You obviously believe it is of great value to the citizenry and they should sue for the largest amount of money they can when they spill some hot coffee on their laps or the Doctor insults someone by not saying good morning. Why do you think there are so many lawyers in the US? No one, individually can afford to be sued. Collectively we can all afford it - unless too many of us try to cash in; then it gets a bit expensive.

Yes, there are lots of lawsuits in America, just like you say, and I am well aware of the fact that Doctors screw up.

Weren't iatrogenic related deaths the fourth highest cause of death at one time?

Shouldn't we sue the medical establishment for telling us for some fifty years to consume hydrogenated oils to have healthy hearts?

Canada's health care problem is it is a monopoly. The US's health care plan is a cartel. They are both insurance rackets. One run by government and the other by private insurance companies. I would say that Canada's healthcare plan is socialist, in that it is run by the government, but it pays everyone as private enterprises.

Before there was liability insurance, very few would have thought of suing their Doctor, even if he did make a mistake. A good portion of Doctor's today do not command the same respect they used to. Why is that? A contributing factor is they have liability insurance and really don't give a crap if you sue. It shows in their treatment. I don't mean to say the majority of Doctors are careless but because they have that extra cushion, some of them are a little incautious. Plus they are human, not gods, they will make mistakes.

I understand, as you are involved in Liability insurance, you see it's great necessity. I don't.

Edited July 4, 2008 by Pliny

[guyser]

Being involved in liability insurance you have a vested interest. You obviously believe it is of great value to the citizenry and they should sue for the largest amount of money they can when they spill some hot coffee on their laps or the Doctor insults someone by not saying good morning.

There is value to the citizenry of the US. Lia insurance ensures that the judgement gets paid to the wronged instead of the doctor shutting down all assets leaving the plaintiff with nothing. Is that what you want?

It is not about getting large sums of money, it is about getting fair value. And by the way, if I have a vested interest, then I would "want" this....and I dont.

Also, dont drink the kool aid on the coffee lawsuit. That lawsuit was warranted and the resultant monetary reward was not enough to teach McDonald's a lesson. Gross negligence on behalf of McD's.

Shouldn't we sue the medical establishment for telling us for some fifty years to consume hydrogenated oils to have healthy hearts?

Nope.

With the knowledge of the day being what it was I think not.

Before there was liability insurance, very few would have thought of suing their Doctor, even if he did make a mistake. A good portion of Doctor's today do not command the same respect they used to. Why is that? A contributing factor is they have liability insurance and really don't give a crap if you sue. It shows in their treatment. I don't mean to say the majority of Doctors are careless but because they have that extra cushion, some of them are a little incautious. Plus they are human, not gods, they will make mistakes.

Its a chicken egg thing.

Years ago Doctors were glorified and seen without error. We know different today.As for them being human , thats true, as for making mistakes that also is true. As for them admitting they make mistakes , that is untrue and part of the problem.

Of course they care if you sue. Their rates are dependant on that. If they get sued plenty they will pay at the E&O window. Same as me and my business.

I understand, as you are involved in Liability insurance, you see it's great necessity. I don't.

Fine, but the day you get judgement assigned to you is the day you will understand.

Without liability insurance far too many dangerous products and actions would occur.

[Pliny]

Don't know what happened to my last response seesm it was deleted. I will attempt to reconstruct it.

There is value to the citizenry of the US. Lia insurance ensures that the judgement gets paid to the wronged instead of the doctor shutting down all assets leaving the plaintiff with nothing. Is that what you want?

So Doctors don't face their responsibilities either. Any wrongdoing should be corrected. That doesn't mean that a Doctor should be decimated financially but should live up to his responsibilities.

Liability insurance ensures the Doctor is not financially decimated.

It is not about getting large sums of money, it is about getting fair value. And by the way, if I have a vested interest, then I would "want" this....and I dont.

I think sometimes it is about fair value. A lot of times it is about getting large sums of money.

Insurance companies have a vested interest in capping awards. Insurance brokers do not.

Also, dont drink the kool aid on the coffee lawsuit. That lawsuit was warranted and the resultant monetary reward was not enough to teach McDonald's a lesson. Gross negligence on behalf of McD's.

McD's was probably happy it had it's liability insurance policy paid up. If it had to pay "the resultant monetary reward" out of it's own pocket it probably learned a lesson which would be - redesign your insurance policy and cover your butt.

Nope.

With the knowledge of the day being what it was I think not.

Its a chicken egg thing.

I stopped buying margarine in the seventies. Seems the information was there.

Years ago Doctors were glorified and seen without error. We know different today.As for them being human , thats true, as for making mistakes that also is true. As for them admitting they make mistakes , that is untrue and part of the problem.

I'll agree admitting they make mistakes is part of the problem but they don't have to because it is up to the courts to determine that and insurance companies do not like their clients to admit liability.

Of course they care if you sue. Their rates are dependant on that. If they get sued plenty they will pay at the E&O window. Same as me and my business.

Fine, but the day you get judgement assigned to you is the day you will understand.

They don't care as much as if they had to take responsibility themselves. You are saying they only care about their rates. I just think it a sad commentary on our society. Would you take out insurance to protect yourself from liability from your friends or family? You are suggesting that no relationship or understanding of who your Doctor is be pursued. Insurance companies will look after that for you and protect you from evil.

Without liability insurance far too many dangerous products and actions would occur.

Too many dangerous products and actions seem to be occurring despite it.

In the fast paced world of today perhaps it is best to ensure your safety and security with liability insurance. You are not doing anything less than agreeing with the majority probably 95% of people. Is a deep thinker one that has everything thought out for him already?

[peter_puck]

Dr's E&O Liability insurance is sky high in the US because they screw up . The Docs get paid big bucks (rightly) and pay big premiums to be insured.

No its not. There insurance is sky high because of the corrupt legal system.

Why is it that certain patients are repeated victims of medical malpractice ? (to the point that doctors set up a website to track them)

Why is it that certain certain fields have much more malpractice than others ?

OBGYN's are sued over and over again when they deliver a child who has Cerebral Pasly. There have been billions and billions of dollars paid out in this suits (individual suits have been 100 million plus).

Why is it that OBGYN's make so many mistakes when they deliver so many babies ? The truth is, it is near impossible to prove the doctor didn't have any thing to do with the problem. If the lawyer wins the case, he will usually net millions. Its like a lottery ticket where you will probably win.

How are these cases decided ? The ambulance chaser will push for a jury that is ignorant as possible (like the OJ Simpson jury where anyone with an education was weeded out). The ambulance chaser will then put on the stand a very articulate and convincing witness who will say it is all the doctors fault.

The doctor will be put on the stand, but being a professional doctor instead of a professional witness, he likely will not perform well. If he has any sort of blemish on his record, he will be chewed up and spit out.

The defense will through up a couple suits as well.

What the jury will be left with will be two suits with different opinions. They will use lots of words that the jury will not understand, and the jury will be left confused.

The defense will, no doubt show pictures and videos showing the honest suffering of the child. They will also point out how the mother will have to give up the child to an institution if they don't win the award. They may also point out how rich the doctor is.

Now, you are on a jury, don't really understand what just went on, but know if you don't vote for the massive award, little Tommy will be forced to suffer for the rest of his life, which way would you vote ?

Not content with even that generous system, one legal group ? (trial lawyers?) put a "consumer protection" measure on a state ballot that would cause doctors who lose three malpractice cases to lose their license. Of course if they settled out of court (paid off the lawyer without going to trial) they would not lose their license.

A real solution would be to get rid of the commission lawyers and have malpractice cases tried by judges with medical training instead of a jury of trailer park residents. They should also limit the amount a lawyer could get. It may make sense for a lawyer to take a court to trial with only a 1 in a hundred chance of winning if he gets 30 million for it. It won't if he only gets 50 thousand.

[guyser]

No its not. There insurance is sky high because of the corrupt legal system.

Corrupt legal system? Um ok.

Why is it that certain patients are repeated victims of medical malpractice ? (to the point that doctors set up a website to track them)

Because in life there are those who abuse the system. Same in any insurance market. I would doubt that they are sufficient in numbers to be a real concern.

Why is it that certain certain fields have much more malpractice than others ?

Certain fields present more risk vs reward , accordingly they pay higher premiums, and are paid higher dollars.

How are these cases decided ? The ambulance chaser will push for a jury that is ignorant as possible (like the OJ Simpson jury where anyone with an education was weeded out). The ambulance chaser will then put on the stand a very articulate and convincing witness who will say it is all the doctors fault.

The doctor will be put on the stand, but being a professional doctor instead of a professional witness, he likely will not perform well. If he has any sort of blemish on his record, he will be chewed up and spit out.

Well, for one, it wasnt ignorance on the part of the jury for the OJ trial as it was a pathetic prosecutor. The jury came to a conclusion that OJ was not guilty based on what they heard and saw. Cant argue that one.

Now, you are on a jury, don't really understand what just went on, but know if you don't vote for the massive award, little Tommy will be forced to suffer for the rest of his life, which way would you vote ?

I would vote based on the testimony presented to me. Pretty much what all juries do.

A real solution would be to get rid of the commission lawyers and have malpractice cases tried by judges with medical training instead of a jury of trailer park residents. They should also limit the amount a lawyer could get. It may make sense for a lawyer to take a court to trial with only a 1 in a hundred chance of winning if he gets 30 million for it. It won't if he only gets 50 thousand.

"trailer park residents" ?

Thats pretty pathetic.

Anyhow, your idea of $30M vs $50G's is not to anyones liking. It ensures those who are wronged never to see their day in court since no competent lawyer would work for so paltry a wage.

[guyser]

So Doctors don't face their responsibilities either. Any wrongdoing should be corrected. That doesn't mean that a Doctor should be decimated financially but should live up to his responsibilities.

A wrong, or rather a negligent decision on the part of a Doctor can easily bankrupt a patients family. The family is decimated but the doctor isnt. Doesnt seem fair to me.

Liability insurance ensures the Doctor is not financially decimated.

Quite true.

I think sometimes it is about fair value. A lot of times it is about getting large sums of money.

It is both. And that is dependant on the age of the wronged. sometimes is is about large sums of money because large sums of money will be needed. A negligent Doc causing irrepairable harm to a toddler is one case where larger sums are warranted since no one can predict the costs for the future of that child. He may need 24-7 care for the rest of his life. What will that cost in 2025?

Insurance companies have a vested interest in capping awards. Insurance brokers do not.

Not entirely true. We lose money too when awards outstrip profits. Little known nor understood but we do.

McD's was probably happy it had it's liability insurance policy paid up. If it had to pay "the resultant monetary reward" out of it's own pocket it probably learned a lesson which would be - redesign your insurance policy and cover your butt.

The costs were probably bourne out of McD's liability suit , but not the damages paid. That likely was paid direct from McD's own coffers.

It was and still is a valid lawsuit and should have been settled at the original price, but was overturned on appeal.

I'll agree admitting they make mistakes is part of the problem but they don't have to because it is up to the courts to determine that and insurance companies do not like their clients to admit liability.

Thus the circle goes 'round.

Admit fault early, get a settlement out of court and voila , costs and settlements are down.

Obfuscate , mislead , and a jury will tack on lots more money since it is obvious where the error occurred. Not applicable to all, but some suits, such as leaving surgical tools/towels/sponges in a patient are cases where this applies.

Would you take out insurance to protect yourself from liability from your friends or family?

Of course I do. Millions others do in N America.

Do you own a house, rent an apartment, drive a car, drive a boat? If you answer YES, then you do too.

Not having done so would be stupid.

Too many dangerous products and actions seem to be occurring despite it.

Far less than before. if you want to say the pendulum has swung too far trying to ensure safety, then we have a point of agreement. Testing today is far superior than it was even 20 scant years ago.

In the fast paced world of today perhaps it is best to ensure your safety and security with liability insurance. You are not doing anything less than agreeing with the majority probably 95% of people. Is a deep thinker one that has everything thought out for him already?

Huh ?

[peter_puck]

Certain fields present more risk vs reward , accordingly they pay higher premiums, and are paid higher dollars.

Well, for one, it wasnt ignorance on the part of the jury for the OJ trial as it was a pathetic prosecutor. The jury came to a conclusion that OJ was not guilty based on what they heard and saw. Cant argue that one.

Well, if you look at the polls and reaction to the verdict, you were in the minority. The evidence was overwhelming. The jury decided to believe the "scientists" that the defense brought it - because they had no clue about the subject. The defense team got rid of anyone prospective juror with much of a education.

I would vote based on the testimony presented to me. Pretty much what all juries do.

What if you get a guy in a suit who says "this could only have been caused by the doctor's failure to properly insert the widge in the playorta. Another suit says the opposite. Do you really know enough to judge who is correct ? I don't

"trailer park residents" ?

Thats pretty pathetic.

Lawyers have some ability to pick their juries, and a trailer park resident is the ideal choice in something like this.

The provide information that the jury cannot understand, and then play the class (or race) card.

There is a small pharmacy somewhere in the states that has been named in almost all major medical product lawsuits. Why ? Because it is the only pharmacy in a a county that is one of the poorest and least educated in the country. Every lawyer wants to file their case their, but they need a local victim. So they scour the county for a victim, and, of course, that victim would have had bought the product at the local pharmacy

Jury trials should not be used in cases where the jury cannot understand the evidence. They were invented in a time where the most complex case was a horse theft trial.

[peter_puck]

Liability insurance ensures the Doctor is not financially decimated.

It takes about 10-12 years or more to become a doctor in the US (4 years undergrad, 4 years med school, + residency that can be ). Many medical students will run debts up to $250 000 or more (this is in the US).

Would you not consider this person "financially decimated" if he had to quit medicine because of frivolous lawsuits ?

Try this. Burn your house down twice and see if you can ever get house insurance again. Same with doctors.

[guyser]

Well, if you look at the polls and reaction to the verdict, you were in the minority. The evidence was overwhelming.

Wonderful sentiment if it were true, but alas ,it isnt so.

From our on MLW we can see plenty of people do not understand the legal system and how it works. And while I am no expert either, at least I saw the errors presented in OJ.

For instance, the gloves didnt fit. So he could not have worn them. Never mind the prosecutors did not realize they shrunk because of the blood drying on them. They presented stuff they did not know would not work. Bad move. Never ask a Q you dont have the answer to.

For instance, the blood vials were left in a warm car, were not secured from any tampering. Anyhow, I think you get the point.

What if you get a guy in a suit who says "this could only have been caused by the doctor's failure to properly insert the widge in the playorta. Another suit says the opposite. Do you really know enough to judge who is correct ? I don't

Maybe I dont know. But I know enough to ask questions or read about it to inform myself. The jury has that option and does utilize it.

Lawyers have some ability to pick their juries, and a trailer park resident is the ideal choice in something like this.

The provide information that the jury cannot understand, and then play the class (or race) card.

If trailer park residents are available in the jury pool maybe they pick them all. But if all the people in the pool are professionals, then that is who they pick from.

I dont ever remember my mother living in a trailer park. Same goes for my dad. Not to mention of course all the other people I know who have been jurors.

Jury trials should not be used in cases where the jury cannot understand the evidence. They were invented in a time where the most complex case was a horse theft trial.

Dont agree at all. Most anything can be explained, thus the lawyers and the court have a job to do. Few people would expect to know finance at levels that were involved in Enron, or even the Black trial, but convictions were achieved none the less. Seems some people knew enough to do the jury deliberating .

[guyser]

Try this. Burn your house down twice and see if you can ever get house insurance again. Same with doctors.

If it burned four times call me. Half an hour later I will present you with home insurance coverage. No problem.

Now if "you" burn it down, I wont visit the jail where you will be sitting.

[Sulaco]

Disadvantages of Tort Reform:

1. The various united States have, as a tradition, relied on private action to regulate industry. Rather than bureaucracy intiated regs the general approach has been for private persons to sue tortfeasors for various torts. Losses in court by these tortfeasors would modify the behavior of the class of potential tortfeasors. In practical terms - the medical malpractice of one doctor would result in a suit. If negligence can be proven then the plaintiff would recover. Insurance companies constatnly keep records of cases won and lost. The become general knwoledge in the emdical community. Furthermore, to protect themselves and their policy holders, these insurance companies update the doctors on what constitutes negligence for purposes of torts. Doctors modify their behavior or insurance companies up their rates or drop coverage.

A shift away from this system, which tort reform achieves, limits the upside risk of insurance companies. These companies can relax their monitoring as their losses become more foreseeable. No longer does the "lawsuit market" inform the doctors of what is acceptable behavior and what constitutes negligence. No longer are doctors subject to the same insurance company scrutiny. The result is that their work slips.

The final result? Government regulation of medical practice and a new bureaucracy - paid for by taxes on everyone. Great!

Now I have no per se problem with insurance comapnies. In fact I have enjoyed litigating on their behalf. I do have a problem with the government protecting them, and by extension doctors, from the risks they willingly undertake.

2. The little guy gets screwed is right! As potential awards drop lawyers will no longer take plaintiff's cases of what now has become marginal value. In med mal this is especially true as med mal cases are very expensive to develop. The money to develop these cases is usally fronted by plainitff's lawyers who then expect a profit base on the contingency fee earned if the case is won. As the potential contingency fees drop, the risk vs. benefit comparison on any given case changes. Fewer little folk will be able to procure lawyers.

But whatever - many prefer what I describe here as negative results.

Edited August 14, 2008 by Sulaco

[peter_puck]

Wonderful sentiment if it were true, but alas ,it isnt so.

From our on MLW we can see plenty of people do not understand the legal system and how it works. And while I am no expert either, at least I saw the errors presented in OJ.

For instance, the gloves didnt fit. So he could not have worn them. Never mind the prosecutors did not realize they shrunk because of the blood drying on them. They presented stuff they did not know would not work. Bad move. Never ask a Q you dont have the answer to.

For instance, the blood vials were left in a warm car, were not secured from any tampering. Anyhow, I think you get the point.

Maybe I dont know. But I know enough to ask questions or read about it to inform myself. The jury has that option and does utilize it.

If trailer park residents are available in the jury pool maybe they pick them all. But if all the people in the pool are professionals, then that is who they pick from.

I dont ever remember my mother living in a trailer park. Same goes for my dad. Not to mention of course all the other people I know who have been jurors.

Dont agree at all. Most anything can be explained, thus the lawyers and the court have a job to do. Few people would expect to know finance at levels that were involved in Enron, or even the Black trial, but convictions were achieved none the less. Seems some people knew enough to do the jury deliberating .

[peter_puck]

Maybe I dont know. But I know enough to ask questions or read about it to inform myself. The jury has that option and does utilize it.

My understanding is that they are allowed to do neither of those things. I know a few years back on judge allowed to jury to ask questions, but this met with a very negative reaction from the legal community. The idea being that the jury then becomes part of the process and are no longer neutral.

If trailer park residents are available in the jury pool maybe they pick them all. But if all the people in the pool are professionals, then that is who they pick from.

What I meant there (and I suppose I should apologize to trailer park residents) is that in certain types of complex cases the lawyers will try to find a jury that is as ignorant as possible. The OJ Simpson case is an example. Throughout the trial the defense team did their best to have anyone with an education disqualified.

Now, most pools will probably consist of a mix of people. So it might be difficult to

I dont ever remember my mother living in a trailer park. Same goes for my dad. Not to mention of course all the other people I know who have been jurors.

Again, it would depend on the type of case. A poor victim, a rich company and a complex case would yield an ideal world of "trailer park residents" (again, I regret using that term). In other instances, a different jury might be better. In many criminal cases in minority neighbourhoods an jury of all white female homemakers works best.

There are companies out there that do "scientific jury selection".

Dont agree at all. Most anything can be explained, thus the lawyers and the court have a job to do.

Sure it will be explained, two different ways by two different suits using words people don't understand. You will have to pick which one is right. Juries have rejected DNA evidence, they have accepted "facilitated communication" evidence (the idea that people with autism are really super smart and can communicate abuse in college level English despite never having been taught how).

A certain percentage of people can go to court stair the jury straight in the eye and say "I wasn't drinking that night - the breathalyzer must have been wrong" and the jury believes them (in most cases they don't). This means we have reduced the criminal justice system to a lottery ticket.

Few people would expect to know finance at levels that were involved in Enron, or even the Black trial, but convictions were achieved none the less. Seems some people knew enough to do the jury deliberating .

With Black you did not need to know complex finance. The guy took kickbacks - its pretty easy. The guy wrote emails comparing himself to the nobility of France before the revolution. The prosecution played to the class warfare ideas like the product liability lawyers do in their cases.

I suppose the best measure of the jury system would be consistency. Here they fail badly.

There are all sorts of studies where Psychologists present the same "trial" to a jury. By varying bits of the case, or by varying the jury pool, they can come up with different results. Ugly people get convicted more often than good-looking ones (changing the picture associated with the case has an influence).

White people get convicted of financial crimes more often than blacks. Blacks get more "convictions" when it comes to violent crimes.

This is not a big a problem if the case is clear cut, but if it is close or confusing, this things take over.