december, You make the kneejerk insurance line that malpractice suits drive up rates and ultimately cost everyone in one form or another. In a more general note,who ultimately pays when insurance companies make bad investments or double pay a claim. (Yes,it happens) The insurance industry is no different than any other and everything gets passed down in one form or another. A cap is nothing but the insurance industry trying to save money by exerting control over the legal system and that is totally unacceptable. I could not support a medical malpractice cap but a “3 Strike Rule”? Now that’s real medical reform.
Sorry, Read_Neck , that’s the reason this company left the business. It’s easy to espouse the us vs. them with the insurance companies and it can be really fun to do if you ignore facts too. Four legs good, two legs bad.
http://www.bizjournals.com/southflorida/stories/2001/12/10/daily11.html
Ahh, this makes me wax nostalgic for Ross Perot and his amazing graphs which simply proved whatever needed prooving.
I love how the graph doesn’t show how premiums rates changed or didn’t change after the MICRA experiment. Nice.
[QUOTE]
*Originally posted by lucwarm *
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It’s not just about punishment – it’s about compensation too.
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I understand that, but monetary compensation in these cases is not true compensation. The person is not getting back what they lost. I know - it is the only form of compensation we have, so it is something instead of nothing. Why do you think $4 million is fair? Why not $100 million? I think we also agree that theoretically, no amount would be enough, so we have to come up short at some point. Any amount of money you would offer me for my life or my family member’s life is laughable.
**I suspect that the extent to which medical malpractice lawsuits are “out of control” is a matter of some controversy.
**
It may be that every single lawsuit is a valid one, but the insurance rates are also a real problem for many good doctors. I don’t want to live in the state where doctors are fleeing because they cannot afford to practice there. There has to be a compromise. The health care field is not the same as other free markets, the consequences are higher. I understand that in any insurance scenario we pay for other people’s mistakes. If I can’t afford to pay car insurance because other people are horrible drivers and drive rates up, then I don’t get to drive a car. This is a bigger problem when doctors in my state cannot afford to pay their insurance, it threatens availability of good health care for many people. I look at Oregon as an example, but I know other states are having the same problems.
"The crux of Oregon’s tort reform package passed in 1987 was a $500,000 cap on jury awards for pain and suffering, said Robert Dernedde, executive director of the Oregon Medical Association. The cap was struck down in 1999.
“That cap stabilized our liability climate, premiums dropped, and we had a stable climate for a dozen years,” Dernedde said. “Since it was overturned, there have been a large number of huge verdicts and settlements and as a result, insurance carriers are raising their rates.”
Many Oregon obstetricians have stopped seeing new patients, Dernedde said. "
This cite also goes on to say that while caps are not proven to be the whole solution for every state, they do help.
**Look, you agree that people should be compensated to some extent for pain & suffering, no? **
Yes, but I look at Robin’s example and I think I would feel the same way. (I cannot say for sure, not having experienced it - it must be the most difficult thing anyone could ever experience and I am sorry it happened to her). She has lived through the exact scenario people are talking about. We all agree that $250,000 is not enough to compensate for a life. No amount is.
The question is the impact of insurance rates on doctors. Sure $75k/yr is a lot. But $120 for a 10 minute consult is a lot too. Why are some doctors’ offices going out of business and others not? The answer is no doubt complicated.
But keep in mind that no doctor is gonna say “I have a bad reputation in the community so my office doesn’t generate enough revenue to cover my costs.”
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I would think that the health-care provider would have a lien against any recovery. But in any event, there’s no need to argue over my example since you seem to agree that there are situations where a $250k cap would work serious injustice.
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I don’t see why, since an accountant who is confined to a wheelchair would seem (to me anyway) to have about the same amount of earning potential as one who isn’t. But again there’s no need to argue over this example.
Why not? I’m perfectly comfortable with the idea of paying extra for goods and services and knowing that if me or my family is injured because the good or service doesn’t work properly, we will get some measure of compensation.
It’s odd that you of all people would question this principle given that you’re an insurance guy.
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Not particularly. If attorneys are getting too much money in fees, capping damages seeks like a bizarre way to address the problem. The reality is that there are many different people involved in the tort system, including attorneys AND insurance companies. All of these folks collect, in effect, a portion of the premiums paid.
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Perhaps - what’s fair depends upon a lot of different factors. But let me ask you this:
If a $250k cap is not put in place, by what percentage will malpractice insurance premiums rise next year?
[QUOTE]
*Originally posted by Velma *
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I already agreed that the amount is somewhat arbitrary. But the fact that there is no cut and dried way of reaching a correct amount doesn’t justify imposing a cap that in many cases is way too low.
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Based upon my knowledge of human nature, I am skeptical that doctors are “fleeing” certain jurisdictions in vast numbers over insurance rates.
I also note that New York City contains two of the most generous counties in the nation in terms of awarding damages – Bronx and Kings. And yet doctors are not fleeing New York City by any stretch.
December, you have villified lawyers and made the insurance companies out to be innocent victims of said lawyers, bad doctors and unscrupulous claimants.
I have a question:
When an insured doctor makes a heinous mistake that that can only be a result of incompetence, why does the insurance company not simply cancel his policy? It seems that it would be in the industry’s interest to keep tabs on bad doctors, share the information and refuse to insure them further.
Suppose you hire a lawyer to help you sue somebody, and the lawyer screws up…can you sue him? (and can you sue for “pain and suffering”? What are legal malpracticeinsurance premiums like? Can you really find a lawyer who iswilling to sue oneof his own profession?(or can you get a MD to do it?)
An individual insurance certainly can cancel or non-renew a doctor’s policy, just as they can non-renew your automobile insurance policy. Normally, the doctor would then buy his insurance from some other company. Or, he might take a job with a institution that provides malpractice insurance. E.g., he could become an employee of a hospital or clinic…
I suspect it would violate anti-trust law if a group of insurance companies conspired to deprive a doctor of malpractice insurance. It would be like conspiring to drive him out of business. Furthermore, I don’t think insurance companies should be allowed to decide who can practice medicine. They’re not qualified to make that decision, nor are they empowered to do so.
Also, it’s rare that a single malpractice case indicates that a doctor is incompetent. Occassionally a series of malpractice cases indicates incompetence.
ralph124c, yes there are legal malpractice suits and lawyers do buy professional liability insurance. Normally, a lawyer will be found negligent if he messes up in some objective way. E.g., suppose he carelessly misses a deadline for filing some court document, and the lack of timely filing causes the loss of the lawsuit.
Yes.
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You can sue for everything that you could have sued for in the original lawsuit. So if your lawyer screws up your medical malpractice claim, you can potentially sue him for pain and suffering.
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It varies depending on the number of lawyers, the nature of the practice, history, etc. For what it’s worth, my premium this year is about $1200. Ironically, lawyers who take on personal injury and medical malpractices cases pay significantly higher premiums.
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Absolutely – some lawyers specialize in suing other lawyers.
But the only decision they would be making is whether to sell the doctor insurance. He can practice without it, at his own risk. And wouldn’t that have a positive effect all the way around? Less malpractice claims, less chances for a bad doctor to hide behind someone else?
Actually, I wouldn’t be surprised if insurance companies rate doctors based upon their claims history and adjust their premiums accordingly.
And yeah, it does seem that such a practice would have the rough tendency to squeeze the lousy doctors out of business.
I’d be interested to see the claims history of some of these doctors that are “fleeing” over high insurance premiums.
It seems like a reasonable idea, but it wasn’t done by the malpractice company I was with 38 years ago. I actually worked briefly on a plan to rate doctors based on their claims history, but shortly thereafter, my company quit the malpractice business altogether. I canot rule out the possibility that experience rating of physicians may have been introduced subsequently.
From a technical POV, there are some difficulties. One is that most doctors have zero claims or only one claim. A second difficulty is that it typically takes years to settle a claim, so the experience rating would have to be based on old events. It wouldn’t be fair to surcharge a doctor because of a claim that hadn’t been proven. A third problem is that experience rating would affect a doctor’s willingness to allow a claim to be settled. If he were facing a surcharge, he might demand that every claim be fought in court.
Also, I don’t think that malpractice claims are necessarily fair or just. Obstetricians get sued for babies with birth defects, although the OB usually played no role in the unfortunate birth defect. Emergency room physicians often get sued, under the assumption that they ought to have provided an unreasonably high degree of care. I suspect these types of physicians would be irritated at surcharges for claims that they considered unfair in the first place. Also, rating does vary by class of doctor. So, OBs and ER physicians already are charged high rates.
Interesting points about rating, december. It seems to me that any experience rating system has the potential to be unjust. But in any event, we’re getting a bit sidetracked. Why not take a crack at answering the points I made earlier:
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Is there anything wrong in principle with using insurance to have consumers of medical services pay more and to use that money to help compensate those who are injured due to substandard services?
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If attorneys fees are too high, wouldn’t you agree that there are more sensible policies than malpractice liability caps to address the problem?
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If a $250k cap is not put into place, by what percentage will malpractice insurance premiums rise next year?
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Why are doctors not fleeing from New York City even though New York City contains two of the best jury pools in the nation for plaintiffs?
(With respect to my most recent post, I am of course referring to $250k caps on pain & suffering damage.)
So because the lawyers will get some portion of the damages awarded (and the percentage will certainly vary from case to case) that’s a reason to withhold monies paid to malpractice victims? That seems more an argument in favor of limiting attorney compensation.
Again, that’s not a reason to cap other people’s ability to receive compensation for their losses. That’s a reason to cap premiums, so that insurers are forced to cut coverage for the incompetent so that they’re not facing a cut in their sizable profits and good doctors can continue to provide adequate care to their patients without breaking their banks in the process.
As BottledBlondJeanie stated, there are going to be cases – especially cases which cannot be settled and end up going to trial – in which the cap simply will not be enough.
Imagine that your doctor botches your carpal surgery. Now, every time you move your fingers, crippling pain shoots up your arm, into your neck and even out into your jaw, and the consensus from the experts you’ve consulted is that this is a permanent condition.
So now you’ve got a situation where you will face pain every day of your life when attempting to perform the most basic tasks - combing your hair, opening a door, touching your child’s face, drinking a glass of water. You will require assistance to do routine tasks such as housecleaning and grocery shopping. Driving a car will be difficult at best, impossible at worst, so you will either find yourself strongly restricted or you will incur great expense to maintain your mobility at the level you desire.
You’re 30 years old. You’re no longer able to write a check on your own without pain. This is going to go on for the next 50 years.
50 years at $250,000 means that this pain would only be compensated at approximately $5,000 a year. That wouldn’t be enough to pay for a professional service to clean your home every week.
That’s absolutely true. However, P&S doesn’t only apply in wrongful death cases, and it certainly shouldn’t be capped at a level so low that a living victim is incapable of retaining some type of normal life. (See my example, above.)
Maybe, maybe not. We don’t know if the paralyzed accountant will also be experiencing pain or other complications which make it difficult for him to work, or work regularly. We don’t know if he will be forced to change jobs because the place where he was working was ADA-compliant but still not as accessible as he needed it to be.
We don’t know that he won’t be passed over for new assignments, promotions or partnership because his bosses feel that he is incapable of meeting the demands that those things would entail. We don’t know that his physical situation won’t worsen over time, forcing him to cut back hours (therefore losing earnings) or stop working entirely.
And even if he does maintain his earnings at the level expected before the malpractice, his condition is almost certainly going to cause him to incur unexpected costs which won’t be considered in the calculations for a compensatory damage award.
And that’s the goal, or ought to be – making sure that victims are not going to be twice penalized, first by the injury that they suffer and again because they are financially depleted in the course of restoring as much normalcy as possible into their lives.
I think this cap is a little low. There are a lot of potential malpractice cases that would warrant higher rewards for pain and suffering.
In any case, I do think it is very sick that lawyers get so much from these pain and suffering awards. There should definitely be a cap on that.
I’m unclear on how your suggestion differs from the current malpractice system. Are you suggesting that compensation be awarded by some other entity than the court system?
There have been suggestions to cap the percentage that attorneys get at some lower level, such as 25% or 20%. I don’t think the votes are there to do this.
I don’t know. In any event, it will vary by state, by insurance company and by class of physician.
Good question. I don’t know.
Earlier, I said the following:
And here was your response:
In essence you seemed to be arguing against the concept of insurance. I take it you are now backing away from that position?
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Are you saying that caps on pain and suffering awards in med. mal. cases are the only politically viable way to limit attorneys fees?
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On the previous page, your hypothetical question was based on the following assumption:
"If there’s no reform, next year you will pay $150 to the injured patients and $150 to the rich lawyers. With reform you’ll pay $110 to each group. "
The reality is that your point was based upon pure speculation.
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Ok, so perhaps you will concede that that the problem (if there is any) is a little more subtle than (large jury awards for pain and suffering) ====> (higher rates for malpractice insurance) =====> (doctors “fleeing”)
If I’m not mistaken, the costs for the care needed, as well as lost income, would be under actual damages, not pain and suffering.