I looked briefly at the document you cite. It does not appear to attempt an unbiased analysis. In particular, the part you reproduced above conspicuously omits cites itself. It would thus appear that the 30-40% is an unsubstantiated assertion that can be traced to the document you linked.
In general, the exceutive branch reflects the goals and perspectives of the party in power. Since one of the stated goals of the GOP was to go after greedy attorneys and to reform medical malpractice, it is reasonable to assume they have a preconceived linkage between these two issues.
So, in general, I would doubt the conclusions of the report you cite. Show me a non-partisan, say CBO, analysis that reaches the same conclusions, and I’ll accept them.
Science is not simple, and social science less so. I can think of several plausible alternative explanations of why the rate would increase more slowly in states with caps, other than the caps themselves.
Caps on rates, as BrightNShiny suggests.
Different populations of doctors (who won’t perform as many tasks that would raise their premiums)
Different populations of patients (who are less likely to file lawsuits)
Different legal environments (that disincent lawyers from filing the suits)
I expect there is a literature on these states and that each of these possibilities has been explored. Anyone who has the time should go seach on ISI Web of science and see what can be told.
In summary, causation in the direction you infer is possible, but there are many tenable plausible hypotheses.
Pain and suffering is a pretty broad term, though. My mother’s cousin won 1.5 million in a malpractice suit for his daughter (he didn’t get more because that was all the doctor was insured for and he was unwilling to go after the doctor’s personal assets), but despite her pain and suffering, I doubt that she even knows that. She probably doesn’t realize that the money was just a drop in the bucket when balanced against the costs of her care…she doesn’t know how to walk, or say much more than her name, either, though. If a doctor had done his job correctly 22 years ago, and realized that she needed a shunt put in before massive, irreversible brain damage had occurred, maybe she’d be able to give us her opinion on how much money pain and suffering is worth.
Maybe some people are thrilled to get a larger sum than $250,000 and take advantage of it, but a lot of people are like my cousin, and use the money to pay the constant medical bills that would never have existed if a doctor had done their job correctly; there shouldn’t be caps for that reason alone.
I’ll do better than clearly unbiased; I’ll give you the very biased lawyers word for it, the Georgia Trial Lawyers Association web site defending the use of contigency fees as “the key to the court house” http://www.gtla.org/public/contingency/whatis.html
As to your other hypothesies … and the reason that those states would both have caps and have a different population of doctors or patients is??? (I can see a point of view that most lawyers fled the state for more profitable hunting grounds, except that it isn’t so easy to set up a new practice in a new state. )
I was under the impression you had used that document to defend other claims. Sorry if I misunderstood. BTW, the practice is Georgia is not necessarily reflective of general practice. Though I’m sure contingency is widespread. Do you oppose it in principle, or only for medical malpractice?
And, IMO, the lawyers don’t cause people to be injured by incompetent or negligent doctors. Agree? So they can’t be a cause of winning lawsuits. You may hate them, but the reason they get paid (or paid off) is because they (sometimes) have legitimate complaints.
You offer one reason why such an association might exist. Here are a couple more: conservative states might well have caps. They would also possibly have patients less likely to file (since conservatives don’t believe in big awards). That’s a hypothesis for the patients.
For the doctors, one might suppose that the reason there are caps is that the premiums were way too high before, scaring people away from specialties with high premiums. Those that stay merit smaller premium increases since they do less lawsuit-prone procedures.
Here are a couple more tenable hypotheses:
5. Juries in those states are less likely to award big amounts.
6. The rates are already high enough and the sizes of the awards aren’t increasing so much in those states.
Let’s stop this game now, though, OK? It seems a minor point to argue about the relevance of one observed fact. You already agree that association does not equal causation, and you choose to belive it most likely in this case, while I believe there are other plausible hypotheses.
There should be a difference in award structures for mistakes that anyone practicing medicine or any medical institution could make on a bad day (cut too deep and nicked a major artery, had to get out in a hurry and managed to infect patient in the process; did not make a good diagnostic call and therefore untreated cancer metastatized to liver) versus mistakes that can only occur in the presence of gross negligence or criminal stupidity (doctor amputates wrong leg, surgical team forgets to type-match donor to recipient in transplant).
If Congress wants to put a cap on awards for malpractice of the first type, fine. The goal in such cases should be compensating the victim for costs they incur in trying to address the situation.
In cases of the second type, I think huge headline-making punitive awards are in order.
First, you are close to being right (in an unquoted part of your post) about typical contingency fees. One-third is typical. Those who have been disputing this in this thread (who are otherwise on my side generally) are wrong. However, in my opinion, 33% is fair. Med Mal attorneys (I don’t practice in this area of law, but know many who do) already decline to take cases where a doc’s wrongdoing is fairly clear, but the value of the injury isn’t huge (one rule of thumb I’ve heard is $100,000). Med mal cases are costly. Out of pocket outside expenses alone often exceed $10,000, without even considering the lawyer’s time and office expenses. This means that a $100,000 win, which means the client would recover (after fees and expenses) about $55,000, can be a business loss for the attorney. Yeah, he’ll get $33,000, but the case often takes years (by the calendar) and hundreds or even thousands of hours. And the (business) wins have to be aggregated with the losses. Further, the lawyer ends up eating the outside expenses in 99 out of a 100 losses. Sure, there’s the occasional multimillion dollar win, but those are rare. Most plaintiff’s attorneys will never have one.
Second, your comment above is more than a little disingenuous, isn’t it? You’ve already told us that you regularly sit on hospital review boards, which have a main mission of evaluating other doc’s actions. That would seem to be an excellent way of learning of wrongdoing. Even someone who never sits on a formal board is going to come across patients where it’s apparent the something a prior doc did was wrong.
Also, you narrowly focus here on the “grossly incompetent” docs. Sure, those are the only docs you should report to the state. (A mere mistake should not subject a doc to license sanctions.) But a mistake (in the sense we’re using that term) is still malpractice. The patient should be told and any doc who knows about it should not conceal it. If the patient isn’t compensated voluntarily, you and your colleagues should be willing to testify. Except for the blinding obvious cases (cutting off the wrong leg, or transplanting an organ with the wrong blood type), this doesn’t happen. You tacitly acknowledge this when you say you are aware of “mistakes”. You’ve certainly come across such basic negligence cases in the review board process. What have you done in such cases? (I don’t mean to make you a personal target of this argument. Let’s assume that when I say “you” I mean a hypothetical doc in a similar situation.)
What our hypothetical doc does is nothing, even if the negligence is clear. He follows the code of silence. He won’t tell the patient, and even if he does, it’ll be off the record and he’ll refuse to testify. Even if he’s paid, he’ll almost never testify as an expert witness, at least not against a doc from the same area. (And when I say witness, I mean plaintiff’s witness. He’ll testify for one of his pals.)
Yeah, there are a few docs who will testify as experts. You (and others) charmingly refer to them as “whores”.
That’s why the medical malpractice litigation system (with all its flaws) is necessary.
Horrendously bad reporting. That is simply not the case.
Say you lose your vision in an accident. Currently, the loss of vision gives rise to two different types of damages in litigation. The first, which may be capped, is the “pain and suffering” caused by the loss of vision; that is, non-economic damages.
The second, which is unaffected by this type of tort reform and is, usually, far the larger component of a damage award, is the economic damages - lost wages and lower earning potential due to the loss of vision, the cost (actual and anticipated) of accomodations needed to deal with the loss of vision, the cost of training in Braille, the cost of the canes, seeing-eye dogs, etc.
So the cap is to limit what can be awarded on top of compensation for the economic damage.
Funny that Ahunter and I picked the same 2 examples for gross negligence. (My post was hours in the making. I’m at the office and edited documents, took phone calls, drafted letters, and had 3-4 office conferences while the window was open. I gotta have something to do when I’m telling someone the same thing for the third time.)
Ban them completely, in all cases. I take this position not because of malpractice insurance rates or any such reason; instead, noneconomic damages cut against the very purpose of the civil legal system - compensation for actual loss.
In law,* the legal system deals in dollars and cents. “He did what? How much did you lose because of that? OK, then that’s what you’ll get in compensation.” Non-economic damages does not translate into dollars and cents, by definition. How much do you lose from the experience of not being able to see, and how much money can compensate you? The answers are none, and none - though for opposite reasons. If an actual loss cannot be “liquidated,” the law cannot help you, because there is no way to determine the appropriate amount of compensation. And if the appropriate amount cannot be determined, the result is inevitably unfair to someone, either the victim or the defendant. It’s bad enough when the legal system reaches an unfair adjudication. It’s worse when it’s goal is an unfair adjudication.
There already is a different award structure. It’s called “punitive damages.”
So, Sua the parents of the Mexican girl who died because of the mismatched transplant should get nothing except burial costs and a writeoff of whatever hospital charges their child incurred while dying?
Sorry, don’t buy it. If I lose a leg, or have my face badly scarred, or lose one eye, my economic damages would be minimal. (I’d still be able to work in my profession.) Someone in that position is entitled to compensation if the harm is caused by another’s wrongdoing. Yeah, the calculation is imprecise. It’s better than nothing, though.
Hmm. It appears DSeid rushed right over from the Bureau of Misleading Statistics with a bucketfull of goodies for us. Where to begin?
Doesn’t it strike you as odd that they chose to focus on a particular three-year period? Why do you suppose they did that? Think about it. I’ll give you a moment.
Obvious answer: they picked a year with a very low average jury award (1996), and then a year with an unusually high average jury award (1999) to make you think jury awards are skyrocketing. What have average awards done over a longer span, say 15 years, adjusted for inflation? The insurance companies have thoise stats. Why don’t they produce them if they support their claims?
For that matter, why are we focusing only on cases where the jury found in favor of the plaintiff? Why not review all outcomes in all malpractice cases?
Any malpractice case has four possible outcomes:
Case is dismissed (either for failure to jump through one of the many procedural hoops set up to discourage malpractice claims, or on summary judgment).
Case settles.
Defense verdict. (Plaintiff gets $0)
Plaintiff’s verdict.
Your stats cover only outcome number 4. What about other outcomes? For all we know, defense verdicts have multiplied by a factor of ten over the same three year period.
Insurance companies have these statistics. Why don’t they produce them?
The best single statistic would be average malpractice payouts per capita over an extended period (say 15 years or so). I.e., take the total malpractice payouts (whether by verdict or by settlement), and divide by the number of doctors. (You could break it down by state or by area of practice if you like.) That stat would tell us whether malpractice payouts (on average) are increasing in a statistically significant way.
The insurance companies could produce these stats if they chose to do so. And you can bet that they would produce the stats if they supported the insurance industry’s claims. Hell, they would be trumpeting them to the high heavens. The fact that these statistics have not been produced by insurers tells you they don’t help the insurers’ case.
Like I said, if you contend the system is broken, and that malpractice claims are to blame, prove it.
No, I don’t oppose or endorse contingency fees at all. I respond to the specious argument that caps will make going after bad docs unaffordable: It still won’t cost the plaintiff a dime to go after an alleged bad doc; it only costs if they win something.
And I do not hate lawyers; my brother is a plaintiffs attorney (and works on contigency fees). I hate what the system has created. Sometimes the reason that they get paid is because of legitimate complaints, but often it is not. There are professional plaintiffs medical witnesses out there. Hard for a jury to tell the infectious disease expert apart from the hired schmuck saying what the plaintiffs lawyer want s to hear. They neutralize each other. So it can end up being a sympathetic injured plaintiff versus an inarticulate nervous and percieved rich doctor. I speak here from painful personal experience: the very small chance of having a jury decide against me when I did nothing wrong, and award above my policy limits, taking away my house, my kids college funds, forcing me into personal bankruptcy … was enough to convince me to instruct the insurance company to settle within policy limits. On a case with no merit. Because I was scared. Becdause I’ve heard of cases with no merit winning and being award jackp[ot awards. I was nauseated. I hated myself for not fighting. But I wasn’t going to risk my family’s future.
Random accuses me of being disingenuous:
First I am honestly telling you that I have never seen a grossly incompetent doctor. Even in my review capacity (which you know is protected information) Rude and inappropriate ones who needed displine, yes. Ones that made honest mistakes, including mistakes that had significant consequences, yes. In fact, I’ve never met a doc who hasn’t made mistakes, although usually the systems are in place to catch them before harm results. To their credit most of these docs are anxious to learn from their mistakes. And many decisions are wrong with the benefit of 20/20 hindsight. I am hearing only part of a story when I am the next doc in line. I can honestly say that such wouldn’t be the way I’d have done things. I can say what I consider standard of care. But I wasn’t in the room hearing and seeing what that doc heard and saw at that visit. I don’t know what his/her thought process was. For me to accuse him/her of malpractice would be unfair and serve only the end of trying to make myself look better by bad mouthing someone else. I try to resist that. Even for your examples of the blindingly obvious … I still don’t know how it happened. The docs were not functioning in a vacuum. Various system redundancies designed to prevent these catastrophes had to all fail all be intentionally bypassed. I know something went wrong but I don’t know how. It is not a code of silence; it is knowing that I don’t know the whole story.
Random continues
I’ve been hired to review plaintiff’s cases and have done so, and would have testified in court if it had come to that. But I don’t make my living doing that. I see patients. That’s the difference. There are docs out there who make a large part of their income saying what the plaintiff’s attorney wants them to say. Someone who has sex because it is fun or out of love, is not a whore; someone who does an act for whoever will pay their fee is a whore. I stand by my description.
Robb I have proven that a plaintiff doesn’t need to pay a dime to pursue negligence; but how much they can actually recieve net is then reduced by a lot. If you win you pay for the lawyers time for all his losses as well. What part do you not get?
But the point is that the last several years have seen a skyrocketing of awards and of premiums in states that have not implemented reforms. Unless you are implying that 1996 was an exceptionally cheap year, and then I’d ask you to support that claim.
Again, what are the goals here?
To fairly compensate those who have been harmed by an error. Agreed. Read the cite for some suggestions of how to encourage that before the litigation process is resorted to. I argue that the current system is unfair. Most errors are not found in this system and go without compensation. The costs of litigation on both sides uses up a sizable portion of the money that should be going to compensated those injured. What is left goes to a few lottery winners some of whom have had cases of little merit. A “sympathetic” appearing plaintiff sueing an inarticulate doctor can win the lottery, whereas the unsympathetic plaintiff will likely get much less if anything. Reasonable guidelines for juries on how to compensate based on injury type are needed, rather than awarding people who you like or punishing docs who seem like assholes.
To reduce errors. The trial lawyers argue that the threat of mega-awards makes for better care. I claim that it causes a different class of mistakes. My experience is that human error will always occur and that the make-an-example approach will not reduce that. The effect of these errors can be reduced by doctors openly admitted their fallibility to each other and to review processes and working together to improve systems to prevent errors in the future, to create effective and efficient processes to prevent one individual’s mistake from having a catastrophic outcome.
To have affordable healthcare accessible to all. Medical liability costs and the indirect costs of defensive medicine are just one among many factors that contribute to medical inflation that is out of control. Unaffordable premiums are just one factor that makes for poor healthcare availbility for many. But doctors are leaving states without caps and the expenses associated with out of control malpractice awards get paid for by us all sooner or later.
Note (again) that defense verdicts (i.e. awards of $0) are not taken into account. Why not? For all we know, when defense verdicts are taken into account, average verdicts have decreased. Misleading (and meaningless) stat.
And why did they pick the odd 1987 to 1999 twelve-year period? I gather (based on the fondness of the insurance industry for citing it) that 1999 produced an unusually high average award (at least in cases where the plaintiff actually won). I suspect that the insurance companies are picking years with unusually low awards (1987 and 1996?) and comparing them to a year with unusually high awards (1999?) to create the illusion of an unreasonable increase in verdicts. (If not, why the odd three-year and twelve-year comparison periods? Why not show us the average payout for each year over a 15-year span or so? Then we could see whether we are looking at patterns, or whether 1999 and 1996 were, as I suspect, anomalies.)
As for your demand that I produce evidence on insurance company payouts, well I can’t. You see, the insurance companies are the ones with the stats. And I am deeply suspicious of the piecemeal stats they produce. If the stats support them, release them all.
If the insurance companies want to radically restrict consumers’ rights, as the so-called “tort reform” would do, then the burden is on them to produce the data from which we can determine whether the jump in premiums is a result of a statistically significant change in malpractice lawsuit results. They don’t produce that data (I suspect) because the premium jump reflects instead the effort of the insurance industry to make up for investment losses. Or simply to pad their bottom line.
If it ain’t broke don’t fix it. And if you insist on “fixing” it, the burden’s on you to prove it’s “broke.”