Liberals should support tort reform

Great Debates
1

Democrats are sometimes accused of helping tort lawyers for the sake of campaign donations. I’m afraid this may be true. I’ll consider medical malpractice specifically, but many of the following comments would apply, at least with suitable modification, to other tort areas.

Malpractice lawsuits are supposed to serve two purposes: compensating victims, and discouraging negligence and incompetence. I think the present system in America may do a poor job for both these purposes. (In fact it may impede the efforts of hospitals to evaluate their practice, but that’s a separate debate; in this message I focus on compensation.)

If I emerge from a hospital crippled (or dead), my family may need cash to replace my lost earning power, but it needs that cash equally whether my crippling was due to medical necessity or due to malpractice. In the former case, one is covered by government welfare or private insurance; why does the second case need to be different? (True, some people lack private life insurance and would be “out of luck” if their crippling or death was not the result of malpractice, but, except for a confused sense of “justice”, why should the malpractice crippling be different?)

Some left-wingers favor programs that systematically redirect money from the rich to the poor. One could object to such without endorsing programs that redirect money from the poor to the rich, yet malpractice lawsuits have that effect!

A high earner will need (and be able to afford) life insurance with higher payout. But he will also get a higher payout from a malpractice award, since the payout is often based on earning power. Yet he pays the same price as a poor earner for the medical procedure that caused the negligent crippling. Thus the poor earner’s medical cost is increased by the fact of malpractice payouts to high earners. How can liberals possibly support that? Instead, when going into surgery, hospitals should do what car rental agencies do, and ask “How much optional insurance for this operation do you want to buy?”

Whether the hospital finances such insurance itself, or pays premiums to an insurance company, an incentive is created to avoid medical negligence, but the criteria would be based on actual medical facts, not what might appeal to a jury emotionally.

I’m proposing, not that minor changes be made to medical malpractice litigation, but that the whole concept be eliminated. Evaluating doctor’s competence and compensating victims should be completely separate, with the latter handled by ordinary insurance and welfare programs.

Liberals believe that some legal or governmental mechanism is necessary to discourage corporations from endangering consumers. I agree, but don’t think the present tort system is the best way to that end.

I see no disadvantage of my approach, except the loss of jobs in the tort litigation industry, but it’s time that America wake up to the fact that some employment adds little or no real value and that such wasted resources contribute to economic malaise.

2

Some liberals do support tort reform. What liberals generally oppose is the way conservatives want to do it.

The only difference between your proposal and the current system is that instead of having a court evaluate a claim you want some private panel to evaluate it. This change only makes sense if you operate under the mistaken impression that medical malpractice insurance is so expensive because juries are a bunch of rubes who are misled by fancy-talking lawyers. The truth is that doctors make a lot of preventable errors. It is therefore expensive to be a doctor, even a careful one. A much better reform is the kind proposed in my link.

3

You must have ignored my entire post to suggest it’s similar to the current system! :smack: Malpractice awards, punitive or otherwise, disappear completely in the approach I espoused. I’ve no idea what “private panel” you refer to. Compensation would be based on premium-paid level of coverage with fault irrelevant. (I’m really startled by your response; please save me a trip to BBQ Pit: Did you read my post at all?)

BTW, deleting the “?_r=1” from the URL you posted means I won’t be asked for my N.Y. Times userid/password. (I’ve gotten the easy-to-get N.Y. Times account, twice, but forgotten the password since the pages I access seem open.)

4

Perhaps you could offer some proposal to counterincent malpractice in another way, if the tort process isn’t enough for you. And you might also better explain why someone with a reduction in life quality and span that wouldn’t have happened without malpractice should not be compensated for it.

5

The problem is not your reader, but your ambiguous text. Perhaps instead of assuming all kinds of bad things about me, you should endeavor to simply clarify your intentions.

You propose in your OP a form of insurance that is financed by a hospital and creates an incentive to avoid medical negligence by paying out to victims based on some finding of “actual medical facts” rather than “what might appeal to jury emotionally.” AFAICT, the only material difference from the current system of malpractice insurance is in who is making the critical findings regarding the cause of the injury. If that’s not what you’re proposing, or you think there is some other material difference from the current system, how about you take a shot at explaining it better.

6

Tort theory. You place the cost on the person in the best position to have prevented the harm. (In the case of malpractice, that means the medical care provider.) The theory being that, faced with that potential cost, they will take steps to prevent the harm. If they are freed of that cost, they lose some financial incentive to be cautious.

This is confusing. Do you mean that the patient should buy the insurance, or the hospital should buy the insurance? The latter is what already happens, in effect.

If you mean the former, then that removes the medical care provider’s financial incentive to avoid being negligent.

The problem with that idea is that medical negligence is often only discovered because some “evil tort lawyer” out there has a financial incentive to dig around and find out what went wrong.

7

My “ambiguous text” did not append the phrase I’ve underlined above; indeed as shown below went out of its way to stress the opposite.

I was not “assuming all kinds of bad things about” you, just that you failed to read my post for comprehension. I still believe that. My “ambigious text” emphasized that victim’s payoffs would not depend on findings of negligence:

I’m curious. How is this ambiguous?

8

Again, read my remarks.

Are you suggesting that the family of a patient who dies in surgery without negligence is less needy than the family of a patient who dies due to negligence? :dubious:

9

Logical theory. Works less well in practice.

My “plan” certainly did not flesh out details of forensic investigations of medical error; they would be important; but to assume a priori that lawyers (whether “evil” or not) necessarily would provide higher quality forensics than physicians or detectives seems doubtful.

What’s with the scary “evil”, BTW? Does this contribute to the debate?

10

Your entire post is ill-informed drivel. “Tort Reform” is and always has been the mantra of the insurance companies for increasing their bottom line. They are the lobbyists behind it. They are the ones that will benefit from it. Med-mal cases are simply not the tsunami of windfall judgments they would have you believe. Those cases are expensive to litigate, and difficult o win.

11

This is all about medical tort reform. We have an adversarial relationship with doctors and hospital administrations protecting bad doctors and good ones who make terrible mistakes. There is no board to get a fair resolution. Doctors lie to protect their brethren. Hospitals sic extremely powerful and expensive lawyers on people in the throes of great suffering.
If a pediatrician makes a mistake and a kid needs a lifetime of care ,what should the parent do? What is a fair resolution. Bush used to claim people “won a lottery” when they got a big settlement. How much would you take to allow a hospital to make your kid live through a lifetime of suffering or retardation?
The only tort reform we need is class action suits that make the lawyers millions while kicking a couple bucks to those harmed.

12

Others have already made this point but you don’t appear to have addressed it.

I think everyone agrees that reducing medical negligence is a good idea. Making negligent medical professionals pay financial awards to the victims of their negligence creates an incentive for them to be less negligent. Your “no fault” plan would eliminate this incentive.

This in turn would have the predicable result that negligence would increase. So you’d have more victims suffering from medical negligence and the cost of compensating these victims would increase. Your program would cost more than the existing program.

Maybe your plan would make more sense if you outlined what your alternative program is for evaluating medical professionals.

This is a double straw man argument. You’re accusing liberals of a belief they don’t hold and then accusing them of hypocrisy for not following that belief.

Liberals do not favor redirecting money from the rich to the poor as a principle. What liberals favor is providing services to those who need them and paying for services based on who is most able to pay. And, for reasons that aren’t too difficult to understand, it turns out that poor people generally need services and rich people generally have the most ability to pay taxes.

Liberals would be happy to finance government programs by some better means if one was proposed.

13

Demonization of trial lawyers really adds nothing to the debate. Which is exactly the point I was making. I was parodying conservatives’ demonization of tort lawyers.

14

I certainly agree that an alternate program would be needed to evaluate personnel and procedures and tried to make that clear (“ambiguously,” I guess). I left such details open due to lack of expertise on that topic and to avoid derailing my main point. I implied all this in OP:

15

I did get the impression that many responders read “tort reform”, immediately assumed I was a right-wing idiot, and responded to my post without reading it. You too, hunh?

16

This paragraph from your OP makes it sound like you are blaming lawyers for malpractice costs:

Y’know, maybe, just maybe, negligent doctors and greedy insurance companies figure into the cost equation somewhere. Or not. Maybe it’s all those slick lawyers.

17

Again, try to get the point.

Hardly. But the family of someone who dies due to negligence who would have survived without it certainly is more needy. You suggest removing the current means of compensating them but without suggesting a replacement. Isn’t that a bit of a hole in your position?

18

My understanding was that your main point is that we should replace our current system. If so, a presentation of the replacement is not off topic.

19

Amen. I am sick of telling doctors the enemy is their pussy insurance company that settles bullshit claims rather than the lawyers that sue. Med Mal lawyers working on contingencies will only advance a case if they have a chance of winning. The insurance company, on the other hand, knows it can pass any increase in costs of settling on to the doctor, and thus to the patient. The insurance company therefore has an incentive to settle pretty much any case that comes before it.

Grow a damn pair, start fighting the cases, and no lawyer will touch them. But instead the solution for the insurance companies and their political cronies is to cap damages and prevent suits. $2 million may sound like a lot but it pales into insiginificance compared to the cost of round the clock medical attention for the lifespan of a baby left brain damaged by medical incompetence.