I don’t remember if this is the exact wording, but in a malpractice suit, the jury is instructed to find fault if the doctor failed to provide “reasonable care”. IOW, if the care provided was not up to the standard of what one would reasonably expect from a doctor, the jury is to award damages. It seems to me that if malpractice suits are becoming so common as to drive doctors out of the business, then care that would result in a malpractice suit must be considered to be reasonable care. IOW, the standards need to be reevaluated. Care which generates a valid malpractice claim should be rare; if it’s not rare, it shouldn’t be actionable. Also, there should be a distinction between what I’ll call “deliberate negligence” and “nondeliberate negligence”. Deliberate negligence is when the doctor makes a deliberate decision to compromise patient care: turning off your pager while on call, taking a hour-long break during invasive surgery, etc. Perhaps we should put a cap only on nondeliberate negligence.
Fear Itself and december: may I make a suggestion? You’re not going to get anywhere with this “that site is biased” “no ,it’s not” exchange. So Fear Itself, how about you choose what you think it the most damning claim from the site, and explain what it establishes and how. Then december can post his objections.
I did it by searching “medical malpractice awards.” I can’t imagine why the trial lawyers’ associations wouldn’t want to publicize them either, if they’re concerned. Here’s one:
American Mutual of Mass. did. This was a large, venerable company. Another large mutual, Employers of Wausau would have failed due to its malpractice losses, but it was bailed out by Nationwide. The company I worked for, Argonaut, ought to have failed, but it was saved by a rich parent, Teledyne, as well as some luck. Signal Imperial of California went bankrupt in the prior malpractice crisis around 1973 or so. Scandia Re, a huge Swedish reinsurer, didn’t go bankrupt from American malpractice, but they did lost a fortune and totally quit the business. Lloyds of London took enormous malpractice losses. Lloyds isn’t a company; it’s a structured collection of partnerships. Many very wealthy individuals who were in Lloyds partnerships (called “names”) went bankrupt due to losses in malpractice as well as many other areas. There was quite a spate of suicides among Lloyds names around 15 - 20 years. Many thought that Lloyds itself might not survive, but it did recover.
P.S. Here’s a list of NJ insolvencies. Note that American Mutual, Signal and Imperial are on it. I had mentioned them in the post above. Also, I believe PHICO and Ideal Mutual were malpractice comanies.
It’s not the doctor that pays, it’s the insurance company.
Also - YOU will not get the full award under the present system - you’re lawyer will get at least 1/3 plus his expenses. It’s not unusual for the lawyer to take half or more of the award in these cases. If the suit drags on long enough and the expenses are high enough the lawyers could take all the award and still leave the victims (there’s no other word for it) with a bill for the remainder of the cost of their “services”
Our current system operates from the assumption that medical mistakes are delibrate and preventable. While there are some completely scuz-bag doctors, MOST of the time mistakes are either genuine human mistakes, or due to a system going awry. But only a fool would ever admit to mistake under the current system. So the incentive is to hide mistakes, not bring them out into the open so someone could study why they happen and either fix faulty systems or develop systems to help prevent errors.
Nor does our current system “compensate victims fairly”. First of all, there are, as an example, people who sue their OB/GYN because their child is born with a birth defect. I can only assume this arises out of a feeling that “someone must be at fault, otherwise I’d have a perfect baby”. Well, no, sometimes it just happens. If no one is at fault there is no basis to sue. Even if someone IS at fault it may not be the doctor - there are certain disorders associated with alcohol and other drug use in pregnancy, and others associated with an improper diet in the mother. If it’s NOT negligence, just a bad roll of the dice, then it is NOT malpractice and it does NOT belong in court! Second, when lawyers walk off with a minimum of 1/3 of any award I have to question if this is “fair” compensation, even for just the economic damages. So I don’t think this goal - fair compensation - actually happens in our system except in the rarest of cases.
Now, about high-quality medicine… I don’t see how this system we’re currently operating under does anything to improve anything other than the bank accounts of lawyers. Yes, there are cases where the victim receives money, but in others he or she (or their family, if they’re deceased) does not. The current system gives great incentive to hide rather than to discover problems and root the causes out. Decisions are made by juries where formal medical training is rooted out so they can be swayed by emotion and distressing pictures of bad things and doctors in fields where, by the nature of what they’re treating, there are high complication rates are penalized not for their mistakes but for bad luck - if you’re a brain surgeon not all of your patients are going to come out of surgery in perfect condition given the current state of the art. That’s NOT malpractice, that’s just our own human limitations.
On the flip side, the way the question of affording high quality health is phrased usually implies “how do we pay for high technology?”. That is operating from a flawed basis. MORE medicine is not necessarially BETTER medicine. A long time ago I injured my knee. Back then, surgery on the knee joint was considerably riskier because we didn’t have minimally invasive surgery so docs were a lot more reluctant to cut. Instead of surgery, I had physical therapy. Well, here I am a quarter century later with a fully functional knee. In this case, physical therapy WAS the better medicine. However, if I had that same injury today I not only would be subjected to far more diagnostic testing - all of which costs many many dollars - but they would almost certainly operate because to do anything less could be viewed as malpractice in court when, in actuality, such surgery may do no good and carries real risk of harm. The fact it’s also eaiser to get paid for cutting on someone rather than a proper course of physical therapy probably also has something to do with the current mess we’re in.
I don’t think there’s a quick and easy answer - there are many factors at work and it really is a complicated state of affairs. Tort reform will not cure all that ails the system.
From a philosophical viewpoint, NO AMOUNT of money can compensate anyone for a premature death. Our legal system of torst id fundamentally at fault, because it compensates the lawyers unfairly (“unjust enrichement”).
We would be better served if the government were to set up an arbitartion board to review malpractice claims…jury trials are long and expensive, and rarely evolve decisions based on facts.
On tort reform: this will NEVER happen, as long as the legislatures are filled with lawyers…one cannot expect any reform froma group who benefits from the system continuing as it is now!
The most damning evidence from the AIR site are the quotes from insurance industry executives and their spokesmen. You can attack the arguments or statistics presented on the site, but how can december deny the statements made by industry insiders? He can’t, so he resorts to smearing the messenger, not the message. Like this one, for instance:
How can december attribute statements like that to the trial lawyer boogeyman? I notice december has backed off his statement that AIR is a site run by trial lawyers; now he says the member groups are “influenced” by trial lawyers, a vague, “guilt by association” charge worthy of Joe McCarthy.
Speaking of guilt by association, Myron Picault would be insulted to be called a spokesman for the insurance industry. It’s vital to his reputation as an investment analyst that he be perceived as independent of the industry he writes about.
I’m happy to discuss every quote in your cite. Let’s look at Donald J. Zuk’s statement:
It’s hard to be sure what he meant, since no context was offered. However, I think I can make a good guess. I have often heard insurance execs make this sort of comment at public meetings. In fact, I’m one them who has done so. What I believe Zuk meant was that insurance companies haven’t been charging high enough prices. He’s saying that they don’t need tort reform to maintain financial solvency, they just need to charge more. Executives like to encourage their competitors to charge higher prices.
This comment supports my POV, that malpractice insurers’ claims & expenses have been exceeding their income.
Maybe I’m missing something. In what way do you think this quote is damning?
Some people in this thread might be interested in another one that i’ve just started. Many of the issues are the same, but i didn’t want to hijack this thread with one particular case.
The quote speaks for itself; your “guesses” about the intent of the statement add nothing to the debate. Your futile attempts to spin industry statements is more amusing than convincing. Why don’t you try to spin this one:
All the terrible outcomes you have predicted if we don’t adopt tort reform are in fact caused by industry mismanagement, risky investments, the cyclical nature of insurance and a poor economy. Tort reform is a cynical attempt to boost sagging profits at the expense of injured plaintiffs. To make dire predictions about an insurance industry meltdown that will occur without award caps is nothing more than terrorism against consumers.
Let’s stop here for a minute. I have explained why I see nothing embarassing or scandalous about Zuk’s quote. In order to go on, we need your understanding of what is wrong with it. Otherwise, I’m just debating with myself – a kind of mastur[sub]de[/sub]bation.
I will hazard a guess that there is some confusion between the problem of big rate increases and the problem of high rates. We could avoid big rate increases by keeping rates high all the time. Insurance execs would love that. But, someone pays those high rates. The doctors and hospitals pay all that money, and they collect it from us, the patients. There’s only so much money. The more that goes to insurance companies, the less there is available for other purposes.
When my first child was born in 1966, my wife and I were living on $220/month. We had no health insurance. Nevertheless, we could afford to pay the obstetrician, the hospital, and the pediatrician. Medical costs were affordable then, even by poor people. Today, medical costs are out of sight, and malpractice costs are one big reason why. Without reform, malpractice costs are poised to take another jump. That will make medical care even less affordable.
What am I missing? If the punitive damages portion is a mere trifle compared to the overall award, how is that consistent with disaster should this “reform” not occur? This cap is either significant or it is not, correct?
**Why would this be relevant to an opinion that caps ought not to exist? I’m with you that there are unscrupulous lawyers.
**Sorry, I say let the jury decide what is a “genuine human mistake” and what is not. Legislating away the possibility of the scuz bags getting theirs ain’t the solution, IMO. The fact that there are sometimes unduly high punitive awards should not lead us to conclude that high punitive awards must never, ever be permitted, no exceptions.
Good question. First a pedantic point. Punitive Damages are an unusual award when the action of the defendant or the insurance company are particularly outrageous. Most of the non-economic damages are categorized as Pain and Suffering.
My point is that the cap on non-economic damages may not be a sufficient reform, given that the goal is to maintain the affordability of malpractice insurance. More reform than that is desirable.
There are ideas for broad, systematic reform that might create more equity and fairness. One such is to have a non-partisan panel of experts review the case and make a recommendation for an amount of settlement. The plaintiff could still go to trial, but the jury would be given the results of the expert panel, so they might well do the same thing.
Many other ideas exist for structural reform. The trouble is that the plaintiffs’ attorneys have so much political clout, that truly major reform will be difficult or impossible to enact.
I am trying to understand how both the Weiss study and the US Dept of Health and Human Services study can both be presenting accurate information that support such different conclusions and how to best interpret it. What are the differences?
The Weiss study looks over a longer time period. It looks at median premiums (not average) and restricts the analysis to three specialties. It doesn’t differentiate between types of caps. Any cap qualifies for the purpose of the analysis. I’d like to see what typical caps were in the states analyzed and if there was any trending with magnitude of cap.
The US study looks at a shorter time period, provides a table for average (not median) increases for all speciaties, and is comparing between “significant” caps (at the $250 to 300K range) to no caps.
Both have seperate problems. I like the longer time range of the Weiss study. I do not like its including any cap as the same or limiting to just three specialties. The reform proposal is more akin to the US study’s analysis: all specialties and significant caps. I also do not think that median is as meaningful as average for this sort of analysis. I tend to think that the US study is better designed to answer the question as to whether the proposed reform would have its effect but I recognize my bias going into the analysis might color my judgement. I would like to see the data analyzed by the US Dept of Health and Human Services’ method for the time course used by the Weiss study. Meanwhile we are left with deciding which study we want to believe better represents the likely outcomes from the reforms proposed. I suspect we will all choose that which agrees with our preconcieved notions.
What I do not think is fair is the notion expressed by the Weiss study authors and others in this thread that the insurance companies are making a killing off of caps. Med mal companies are folding. They tried to undercut each other despite rising costs and the weaker ones then had insufficient reserves. The others are only survu=iving by drastically increasing rates. Jackpot awards certainly are not the only driver to increased costs and rates, but the Weiss study itself documents that they have contributed at least to increased drains on insurance company resources.
There is also still the second cost impact that jackpot awards impart: they result in doctors practicing defensive medicine. Such practices add significantly to medical costs. They do not improve outcomes and actually often worsen them. Doctors malpractice premium increases are only minimally passed on to patients (PPO and HMO contracts will still only pay so much no matter what fee you set); the costs of defensive practices are however bourne by pateints to a large extent.
Thanks again for pointing me to the source material.
Yes, really. When there is trial and malpractice is found it is the insurance company that writes the check. That, after all, is what malpractice insurance is for.
After that, the doc may or may not have his policy renewed, and rates may or may not go up for all other docs insured by that company.
Whether that’s unscrupulous or not, that IS the standard and normal practice. I saw this time and again when working in the long term disability area - ANYTHING to do with the lawyers meant 30% off the top, whether that was a malpractic issue or work to obtain social security disability payments. The term “rape and pillage” comes to mind. Nothing at all unusual for 40-60% of an award to go direct to the lawyers. Kind of crazy how many lawyers were then sued for “malpractice” of the law, too.
First, I didn’t advocate “legislating away” anything. Yes, there SHOULD be legal remedies for misconduct.
However, I do NOT think the average juror has the knowledge and background to make determinations in medical cases. I say that both as someone who has actually served on a jury, and someone who works with medical researchers. I have a greater than average knowledge of medicine, yet I would hesistate to say I’d be able to distinguish malpractice from bad luck in all instances.
Let’s take the example of emergency medicine. Someone is rolled into an ER covered in blood and horribly wounded (maybe a bad traffic accident). The docs may have very little time to get this person stabilized. While dealing with flying blood and vomit, in an unconcious patient who can’t tell you where it hurts or what allergies he/she has, it IS entirely possible to miss an injury, or inject a substance the patient has a bad reaction to, without any malicious intent. Sometimes, doing everything right is not enough to bring a person back to complete health.
Of the several people I’ve know who’ve suffered horrific accidents, one lost his leg because he was bleeding from so many places the doctors couldn’t keep up with it - they choose to cut the leg off rather than try to staunch the bleeding. Is that malpractice - or a medical decision? How would you determine that? Mind you, he was bleeding elsewhere and, if I recall correctly, they pretty much had to transfuse enough blood to replace his entire volume of blood twice over. The guy was leaking like a seive. They DID manage to save and reconstruct his injured arm - gee, what if the choice was between saving his arm or his leg? How do you decide things like this? He choose not to sue, feeling the doctors did do everything they could - but if he had, how would a jury have decided?
I’ve seen doctors arguing over whether a case was malpractice or bad luck. If the medical experts aren’t always sure, how can a jury of laypeople be? Although there ARE cases that are outright criminal, they ARE the minority. Most of the time the situation is not so clear-cut. Real life can be messy and complicated.
IS the jury system the best means of determining malpractice? I doubt it. It should be reserved for cases of criminal conduct - which would include, say, leaving in the middle of an operation to conduct some banking then returning - but I’m not convinced that it is the best means when, for instance, a newborn has cerebral palsy. Despite what the late-night lawyer TV commercials imply, CP is NOT always the result of “something the doctor did wrong”.