I don’t have any cite, only personal experience and observation, but from my perspective the trend for “nickel and dime” lawsuits is for insurance companies to overpower the Plaintiff with a lowball settlement, saying, “Don’t like it? Tough. Take it or take us to court.” If the damages are worth less than $2K or so it becomes cost prohibitive for the Plaintiff to hire an attorney and take the matter to court.
Patrick See my post. You are very very wrong. Medical mal is never $2K. This whole thread is about capping the above and beyond every and all possible economic damages to “just” $250,000. The jackpot awards, sometimes on cases of no or low merit, scare us into settling. The plaintiff attorny is on a contigency basis. The plaintiff doesn’t pay the lawyer unless they win or settle … then it is often 20% of the proceeds. Some lawyers make a good living off of frivilous lawsuits settling and the one out of twenty win with no merit landing them a jackpot.
I totally agree. Movement for award caps is a discredit to the Republican Party in that it demonstrates a fundamental contempt for common people and the jury system which is our right. Furthermore, they’re the ones who are always whining that the Democrats “don’t care about your security,” “hate America deep down inside,” etc.
Also, this seems to take powers Constitutionally reserved for the judicial branch and transfer those powers to the legislative branch - that is, the power to render a decision is the jury’s, not the legislature’s, what with arbitrary caps.
A few more responses -
Care to provide a cite? According to my, admittedly biased source, insurance companies typically place 80% of their investments in bonds which have given them a steady 5% return since 1997.
Sure that leaves some 20% that they may have lost on, enough to provoke a modest increase even in states with caps, but not the three time as great of increases that noncapped states have seen.
Lissa as to your cynicism about keeping doctors on their toes … there is a difference between vigilance and paranoia. One is useful the other harmful. Doctors are parnoid about suits right now. It causes harm to patients and their care.
Finally, I’ve got to smile. Oh it’s all about Liberterianism. Dang Federal gubbermint trying to get in the way of The People’s Rights to decide for themselves. I presume that you object to sentencing guidelines too. A jury should be left on their own to decide if murder gets 30 days or death, if shoplifting gets community service or life without parole. Anything else is “contempt for the common people”
How so? (I’m not arguing, I’m genuinely curious.)
Is it that nervousness or being overly-conservative in treatment might lead to more mistakes?
Every intervention, every test carries real risk. For example:
A spinal tap done on a three year old just to protect yourself subjects a child to unneeded risk. Small but real. It subjects the child to uncalled for discomfort. The two days admitted to cover with IV antibiotics when you really don’t think such is needed subjects a patient to real risk of adverse reactions to meds, to catching a resistant bug in the hospital, and so on. The “defensive medicine” blood test done without true medical cause runs the risk of giving a spurious result, and setting loose a chain reaction of unneeded tests and interventions, all with risk of harm, real discomfort and significant expense. All to prove that the first was just a spurious result from a test that wasn’t indicated in the first place.
Like I said, these tests done without medical cause but merely out of fear of lawsuits cost us from $23 to 42 billion a year. Not to mention untold amounts of immeasurable pain and suffering, you know “non-economic damages”
Sure. Medical Malpractice Insurance: Stable Losses/Unstable Rates (PDF file)
Now, back to what you said:
I have provided data that contradicts this claim. Unless you can support it with a cite, this debate is over.
Fear, Your site plays with numbers in some interesting ways but it in no way shows what it claims to, or what I asked.
It claims to show a cycle of insurance company profits by graphing operating income as percent of premium. WTF is this? Want to show how profitable a company is then show me their bottom line, not this bizzare figure. Premiums go up and this number goes down and this shows profitabilty how? Show me how much they lost in stock and bonds investments. You’ve claimed that they’ve lost their shirts. Prove it or retract it.
Then there is their so called “smoking guns”. The claim is made that if lawsuits are the cause of increased insurance rates then losses should outpace medical inflation. Huh? Out of control awards is one of the causes for medical inflation for all the reasons that I’ve already given you. The fact that medical costs have increased in fair lockstep with increased losses is in fact supportive of the exact opposite of what they conclude; it supports the contention that increased losses (jackpot awards)have contributed to the explosion in medical costs … making healthcare unaffordable for many.
Throughout their piece they use that bizzare correction factor, adjusting to “2001 dollars” in terms of medical inflation … which these awards help fuel.
And they use the failure of insurance companies to immediately raise rates in lockstep with increased awards as reason to believe that such huge losses are not a cause of raised rates. Huh? This is (well was) a competitive business. Burger King will run at a loss if has to to compete with MickeyDs, as long as it can. A game of chicken perhaps. They were afraid to raise rates too quickly for fear of losing customers. Now that many companies have folded the others have realized that they can’t run at a loss.
In real money, rather than this funny money shell game of theirs, there has been an explosion in medical mal pay-outs. From my cite already given, the US Dept of Health and Human Services:
Insurance premiums are increasing rapidly. In real money:
Smoking gun? Here’s the smoking gun. Some states have caps some don’t. All these states’ insurance companies have experienced the same stock market. If rate explosions were caused by the stock market collapse then rates would have increased the same in all these states. But
In fact states that have caps have, on average, only one third of the rate increases that noncapped states have suffered.
As to your claim
Well, your data does nothing of the kind. I had provided the cite already. I have shown you the smoking gun (and I don’t approve of smoking!) Maybe you could actually read the cite as I did yours.
Well, given no response from fear I guess this debate is over.
Caps are only part of making healthcare accessible and affordable to all in this country, but it is an important part, one that is easily doable. I hope that we have the will to start fixing our country’s healthcare system. This would be a small first step in that journey.
Funny how one never hears advocates of “tort reform” suggest anything to discipline the bad docs out there. Of course, that would violate the code of silence.
Dseid, you appear to be a physician, or at least someone who practices in a medical field. If so, have you ever come across a doc who harmed a patient because of an error? Maybe more than once? Yes? Tell me, who did you report him to? I’d be happy to give you the phone number of the Illinois Department of Professional Responsibility. If the victim was also your patient, did you advise her of the other doc’s error? Did you offer to testify?
If you position is that you’ve never, ever seen a doc do wrong, then you’re either a med student, or not very believable.
Unless you are will to act against those who do commit malpractice, you arguments for caps will be seen for what they are - a cynical attempt to benefit you and your colleagues at the expense of plaintiffs, with no distinction between those who are really harmed and those who are not.
(And don’t bother asking if I’ve ever reported a member of my profession to the appropriate regulators for wrongdoing. I have. 3 times. Two are without licenses today, which is a good thing for the public of this state. I challenge you to find one doctor, anywhere, who has done the same.)
BTW, anyone who performs an unnecessary spinal tap on a child to advance his own perceived self-interest has committed a battery, and should be in jail. It’s kind of hard to accept the arguments of someone who justifies the torture of a child.
One that’s unnecessary, easily doable at the expense of the injured, and protects the powrful insurance agencies and the medical lobby. Let’s all praise a ‘solution’ that favors ease over justice.
Dseid, do you think it is just to award someone $250k for having a leg amputated needlessly? Do you think the doctor and hospital were sufficietly punished for their negligence and incomptence?
Easy. That is true, it is easy. What is hard is getting incomptent doctors out of the medical profession. For more than a five year period, the state of Texas did not revoke one single doctor’s license. After the Dallas Morning News ran a front page expose, the medical examiners revoked the license of one or two doctors convicted of sexual assaults. Maybe, in that time period there were no incompetent doctors, but that is difficult to believe.
If no one effectively polices an area in American society, you will find that lawyers take that role. In some strange way, if you get rid of the “police”, then you get rid of the problem. A significant purpose of this “Health” act is to make it too expensive to pursue claims. This is easy, but it isn’t just.
As an aside, I think this bill is really using doctors as a cover to remove punitive damages from prescription pharmaceuticals. For some odd reason, the sponsors of the bill would like to see the pharmaceutical industry go unpunished when the risk the health of Americans with dangerously defective prescription drugs. On this portion of the bill, it will make healthcare more expensive and risky.
Illinois Department of Professional Regulation.
(It was a long day.)
First off to directly answer your question, Random: I have served many years on a variety of review and QA boards. We search out for mistakes and for ways to prevent them. We have removed people from our staff. Interestingly, this is very difficult to do because lawyers get up in arms protecting the offending doctors rights. It is a perverse world. I have seen mistakes. Hell, I’ve made mistakes. Fortunately the systems are good enough to catch them. I have only extremely rarely seen an intentionally negligent doctor. I usually see men and women trying to do their best but sometimes messing up. My goal is not to punish but to help figure out how to get the systems in place to help prevent those mistakes, to help docs and the systems that support them improve to minimize the screw-ups which will always occur.
I think that what you are intersted in is making fewer mistakes happen. Do mega-awards accomplish that? No. Besides provoking the mistakes inherent in so-called “defensive medicine” they make doctors less willing to participate in open QA initiatives that help them look critically at their prctices, for fear that it will be used against them.
Most docs aren’t bad; none are perfect. Most mistakes are not made by “bad docs” but by good people trying their best. People who really care. I am more interested in getting participation in efforts to help these docs make fewer mistakes, than in engaging in witch hunts.
Robb pursuing negligence is cheap. Lawyers work on commission. Paying for it if you get a settlement will cost you 20 to 40% though.
Yes, I think $250,000 above and beyond all imaginable economic damages is ample.
Um, Cite?
Then again, Cite?
I know that lawyers work on commission. I also know that lawyers advance all of the costs of litigation. I know that records must be ordered, then reviewed. I know that experts must be hired. I know that experts must be paid. I don’t know very many doctors that just roll over and play dead. I don’t know many insurance companies that throw many at lawyers. So, I ask again, Cite?
DSeid, thanks for your thoughtful response (to one part of my post, at least). I’m familiar with the review board system and agree that it is somewhat effective in evaluating medical mistakes with a view towards reducing them in the future. As you may be aware, the law in Illinois protects the proceedings of such boards from later disclosure. The point is to encourage docs to speak freely. I agree that this is a good idea.
The problem is that even if Our Lady of Acme Hospital boots Dr. Screwup at the end of the review process, that withdrawal of privileges doesn’t mean that Dr. S. can’t practice medicine. He just goes somewhere else.
Sure, his next position may be less prestigious/lucrative, and the patients he sees might be poor immigrants, but he’ll still be treating people. So the hospital protects itself and its patients, but the net benefit to the public is zero.
Only the state can pull a license or otherwise meaningfully sanction an offending doc, and that happens infrequently. Looking at Illinois, if you exclude sanctions involving fraud, sleeping with a patient, wrongdoing related to the prescription of scheduled drugs, and license revocations in other states (which means that the Illinois sanction is automatic and the reason is not otherwise described), meaningful state penalties are even rarer. (I exclude the above categories because they don’t relate to malpractice as that term is being used in this thread.)
So my point is that review boards aren’t enough. Until docs are willing to put their duties to their patients above their code of silence protecting fellow docs, the problem will continue. Legislation restricting the rights of patients to be compensated for their injuries which limits all claims, no matter how meritorious, isn’t the answer.
A bit of a hijack, but do “Pain and Suffering” also apply to LEGAL MALPRACTICE? Suppose you hire a lawyer, who puts you through hell in the course of a lawsuit-can you get a pain and suffering award?
Seems reasonable to me!
I’m not familiar with how economic damages are calculated. Can anyone enlighten us?
To me, the question is whether your satisfaction with $250k is sufficient for me and a jury of my peers to accept it as a limit. According to your argument, they don’t agree think so. They sometimes feel that more is appropriate. I think you need a compelling argument to limit the jury. I’m not saying it has to be the only way to ‘fix’ the system before I’d accept it, but I’d want to explore other routes that placed the burden away from the injured parties.
And BTW, I’m no libertarian. I’m fairly happy with sentencing guidelines, and I’d be happy to see a similar approach used in this case to provide limits based on the damage caused.
For example, I doubt there’s any economic harm caused by scarring of the face, but to me a facial disfigurement would be worth more than $250k in many cases. But I’d be happy to accept a limit of $250k for scarring of the leg, say.
Finally, I didn’t read all of the factual arguments closely, but you’ve got to be careful about confusing association with causation. The fact that the rates went up less sharply in states with limits does not mean that the limits caused the shallower increases.
Regarding comissions and that plaintiffs are encouraged don’t anything unless they win but then they pay 20 to 40% Robb asks
Cite given now several times is The US Department of Health and Human Services. http://aspe.hhs.gov/daltcp/reports/litrefm.htm
Again the cite
(Do people actually check the cites or just spout off?) And I was wrong, not 20, it’s 30 to 40% or more … sorry.
Random, How would Joe Blow doc know of such gross negligence performed by others. Rumor mill? Second hand stories? Honestly, the docs I hang with enough to know their practices are good docs. We disagree about what is proper care sometimes but I respect their opinions and they mine (they are just wrong, that’s all ;)) I believe that many docs have made mistakes but very few are grossly incompetent and uncaring. Arrogant pricks? Sure, I know a few. But not incompetent negligent arrogant pricks.
It also isn’t easy to get privleges elsewhere once you have been sanctioned. Part of our application includes disclosure about past disciplinary actions. But there are ways. The process is not perfect. But jackpot awards are not the answer.
noggin, Economic damages are calculated by calling in dueling experts. How much will this cost to repair and rehabilitate? How will much will associated care cost? How will this effect job prospects and future advancements and thus future potential earnings? Over how long of a period?
As to your supporting a parallel between sentencing guidelines and “non-economic damages”: that may be how it goes. The House has passed the caps package, but the Senate is likely to not in its current form. Odds are something like what you propose will be what they will consider. Higher caps for “more serious” losses. Very much akin to sentencing guidelines.
Finally as to the correlation- here are the possibilties:
Caps kept premiums from increasing three times as fast.
Low premiums increases caused caps. Nah the caps came first.
Some independent factor caused both cap legislation to pass in these states and to keep premiums from increasing as fast there. some factor not present in states without caps. I can’t imagine what such a factor might be, but am open to suggestions and evidence that it exists.
Multiple insurance companies conspired to intentionally keep premium increases low in capped states to trick the public into accepting caps legislation. I wouldn’t put it past an insurance execs ethics, but I doubt that they have the smarts to pull off such a broad conspiricy and keep it secret.
I’d think that the first option is the most tenable hypothesis.
I was under the impression that California regulates Malpractice Insurance premiums as part of its overall insurance regulation (home owner’s rates and car insurance rates are regulated by the state). Someone told me today that this isn’t true. Anyone here know? Because if California does regulate Malpractice premiums, then it should be excluded from any study of caps.