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You are here: Home / Open Threads / Tort reform, bitches

Tort reform, bitches

by DougJ|  August 22, 20094:38 pm| 52 Comments

This post is in: Open Threads

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Expect to hear a lot about tort reform as the death panel phase of the health care debate draws to a close. Serious people believe that most of our health care ills can be cured by a healthy dose of tort reform.

As long as we’re making predictions, also look for MoDo to compare Obama to Don Draper at some point.

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52Comments

  1. 1.

    Will

    August 22, 2009 at 4:39 pm

    “As long as we’re making predictions, also look for MoDo to compare Obama to Don Draper at some point.”

    That’s too easy.

  2. 2.

    SGEW

    August 22, 2009 at 4:41 pm

    . . . cured by a health does or [healthy dose of] tort reform.

    Yes?

  3. 3.

    maye

    August 22, 2009 at 4:42 pm

    women can’t resist Don Draper. all sorts of women are resisting Obama.

    i can write like MoDo.

  4. 4.

    Enceladus

    August 22, 2009 at 4:48 pm

    How could Dowd resist using Don Draper in a sentence: her idea of stylistic brilliance is tedious alliteration and lame puns.

    About the tort reform: I heard somewhere that all this republican carping about “trial lawyers” originates from the pro-democrat leanings of the Association of Trial Lawyers of America. Turn a big donor into an evil cultural force.

  5. 5.

    Ailuridae

    August 22, 2009 at 4:50 pm

    I think MoDo’s MO would be more likely to compare Obama to Betty Draper or Sal Romano if her problematic gender history with Democratic politicians holds.

    I just realized that my previous sentence reads like Bob Somerby; time for a walk.

  6. 6.

    steve s

    August 22, 2009 at 4:58 pm

    Tort Reform is a conservative frame. We should call it something that makes it sound bad.

  7. 7.

    Ejoiner

    August 22, 2009 at 4:59 pm

    Yeah, I looked into the topic when I got into it with a very conservative die hard opponent of reform. He claimed if they shut down the evil liberals and their lawyer friends then the malpractice stuff would dry up and health care costs would come down. But everything I could find pointed to little impact on the actual system.

    http://ksghome.harvard.edu/~achandr/HA_PhysicianMalpracticeNatlPractitionerData_2005.pdf

    And here’s a money quote from another run down on the topic:

    “A 2004 report by the Congressional Budget Office also pegged medical malpractice costs at 2 percent of U.S. health spending and “even significant reductions” would do little to reduce the growth of health-care expenses. ”

    That’s from this site:

    http://www.bloomberg.com/apps/news?pid=20601103&sid=az9qxQZNmf0o

    Turns out I’m wrong though because all of my “facts” are liberal lies and he knows people all over the medical field who keep him informed about the truth.

  8. 8.

    buggy ding dong

    August 22, 2009 at 4:59 pm

    Let us use this moment, then, to remember that Obama offered to accept serious tort reform from the Republicans at the beginning of the health care discussion in order to win their support and cooperation on a bill.

    They told him to fuck off.

  9. 9.

    gypsy howell

    August 22, 2009 at 5:01 pm

    Don Draper, however flawed, is still very alluring. The bloom is off the rose with Obama.

  10. 10.

    buggy ding dong

    August 22, 2009 at 5:07 pm

    @steve s: Like going against the constitution? These strict constructionists sure don’t like that we have the right to go to court, do they?

    This whole thing is a joke. It is simply about turning off a money spigot to the Democrats by harming the trial lawyers. We’ve done about as much tort “reformin'” as we can down here in Texas, yet medical care hasn’t improved and malpractice insurance costs keep going up.

    Wonder why that is?

    Maybe we should go single payer and have public funding of elections.

  11. 11.

    John PM

    August 22, 2009 at 5:17 pm

    Funny how tort reform seems to only involve medical malpractice rather than product liability, premises liability or workers compensation. Someone injured by a faulty lathe or a slip and fall on ice or because they strained their back at work lifting a box has no caps on damages, yet the person who is injured by a doctor (and typically is unconscious or unable to avoid the harm while it is taking place) is a drain on the availability of health care in the US. Why could that be?

  12. 12.

    DZ

    August 22, 2009 at 5:18 pm

    Tort reform is one of the most bogus of all right-wing complaints about health care. First, malpractice expense is a tiny portion of overall health care spending, and the majority of that expense is fully justified. There are negligent and incompetent physicians out there – more than people want to address – and when they harm or kill someone, they should pay through the nose. The problem is that state medical societies and state governments won’t yank the tickets of negligent or incompetent physicians. Keep the bozos from practicing medecine, and malpractice will be a lesser problem.

  13. 13.

    Ambergris

    August 22, 2009 at 5:20 pm

    Oh well, tort reform… it weren’t necessary if insurance companies would adhere to the law. Well, it isn’t necessary, it just plays into the resentment against trial lawyers and highlights the disrespect of the law big corporations are having.

  14. 14.

    Xenos

    August 22, 2009 at 5:23 pm

    The best way to stop the medical malpractice problem is to reform the practice of medicine, and to establish a proper system for remunerating victims of medical malpractice. One way to do this would be to establish a system like workers’ comp – benefits are limited, but it is much easier to demonstrate injury and prove eligibility for benefits. This would also make a really easily tracked system for tracking bad doctors, so I doubt they would like it much. We have systems like this for some vaccines, where it is demonstrated that, say .001 % of recipients will be disabled due to a reaction, and that amounts to a fair number of people when 100 million people get the vaccine over 10 years.

    The biggest reform would be a tax-payer financed single payer system. The biggest awards go to people who face a lifetime of medical bills and the need for millions of dollars of medical support. When that becomes a service provided by the state, people no longer need to score big on a lawsuit to ensure a few decades of medical care. When the single payer system is groaning under the burden of providing care for these disabled people then the meaning of malpractice reform is clear – clean out the bad doctors.

  15. 15.

    Meyer

    August 22, 2009 at 5:28 pm

    As long as we’re talking tort reform, it’s important to add that we’ll need to start turfing out the bad doctors, too. Right now, a lot of that mechanism would seem to be via suing them into obscurity. It might be a tad more efficient if their peers simply ejected the bozos from the profession in a more pro-active fashion.

  16. 16.

    Bhall35

    August 22, 2009 at 5:45 pm

    One of Sully’s stunt doubles is actually providing some useful pushback too, including the link Ejoiner provided upthread:

    http://andrewsullivan.theatlantic.com/the_daily_dish/2009/08/tort-reform-wont-fix-healthcare-ctd-3.html

  17. 17.

    Malron

    August 22, 2009 at 5:56 pm

    As soon as the media gets past the “Obama is a pussy” meme they’ll get right on it.

  18. 18.

    Robertdsc-iphone

    August 22, 2009 at 6:08 pm

    Pitiful. Millions go without coverage & access and these animals want tort reform? Get the fuck out.

  19. 19.

    Fencedude

    August 22, 2009 at 6:22 pm

    I’d be for Tort Reform if it means the increased use of “Tortfeasor” on TV.

  20. 20.

    MattR

    August 22, 2009 at 6:22 pm

    I understand tort reform is a red herring, but my suggestion to deal with this right wing boogeyman is to change the law so all punitive damages do not go to the victim (that is what compensatory damages are for) but instead are given to charity.

  21. 21.

    Roger Moore

    August 22, 2009 at 6:24 pm

    @Enceladus:

    I heard somewhere that all this republican carping about “trial lawyers” originates from the pro-democrat leanings of the Association of Trial Lawyers of America.

    I’m sure that it’s much simpler than that. Big corporations hate consumer lawsuits because they cost money and force the corporations to obey laws they’d rather ignore. Republicans are the tools of big corporations. Ergo, Republicans hate consumer lawsuits and try to do anything to stop them. The only question was how Republicans were going to spin the issue to sell it to the masses.

  22. 22.

    Litlebritdifrnt

    August 22, 2009 at 6:28 pm

    @buggy ding dong:

    Ditto in NC, it is virtually impossible to file a med mal lawsuit in NC due to Rule 9J and the definition (as fleshed out by the Supreme Court) of an “expert witness”. Here in NC before you can even file the lawsuit you must obtain an “expert witness”, that is defined as a doctor in the same specialty, practicing in the same or a similar area, that area having the same or similar demographics to the offending doctor’s area, etc., etc., which basically boils down to “the guy practicing the same specialty in the office next door”, so good luck with that. Then you have to pay said expert to review the medical records and then certify that the care tendered fell below “the standard of care” and caused injury. So if you can a) find an “expert” (cause of course doctors are just falling all over each other to rat each other out natch), b) come up with the money to pay said expert to review the medical records and c) get said expert to certify that the care fell below the “standard of care” then you can file your lawsuit. Then (around here) if it doesn’t settle it goes before 12 jurors, more than likely 12 retired marines who have enjoyed free healthcare since they joined the marines and since they retired and who think that doctors can do no wrong since it is a hard job and see if you get a finding in your favor. Yet medical malpractice premiums have gone through the roof and it is actually putting some doctors out of business, OB/Gyn’s are simply shutting up shop.

    But I suppose the wingnuts have to have some slogans and “tax cuts” and “tort reform” is all they seem to have.

  23. 23.

    John Cole

    August 22, 2009 at 6:29 pm

    I was under the impression that malpractice was only really a problem in certain specialties, like obstetrics and neurosurgery.

  24. 24.

    Tsulagi

    August 22, 2009 at 6:47 pm

    Yeah, the next sideshow will likely include tort reform. And if brilliance exhibited at RedState is any indication, they’ll also try to squeeze in abortion. While RSSF Commander EE called birthers idiots, he sees real intelligence in the deathers.

    Nevermind that malpractice expense adds 1-2% to the cost of healthcare. I dunno, I don’t really mind that. I’d even pay it out of pocket. If I was going under the knife and the surgeon’s fee was $5k, I’d pay the extra $50 to a hundred bucks to have him/her focused on what they’re doing concerned if they’re not instead daydreaming of banging a nurse they could be reamed in court.

    Especially since in THE GREATEST HEALTHCARE SYSTEM IN THE WORLD the third leading cause of death in the U.S. is the oops factor. What, are all these doctors Republicans? Healthgrades puts the in-hospital deaths due to medical errors at 195,000 a year. That’s the equivalent of about 49 9/11s each year from the medical profession terrorists. Never been hospitalized, but if it’s ever scheduled for me, I’m going in packing.

  25. 25.

    PurpleGirl

    August 22, 2009 at 6:48 pm

    Malpractice premiums tend to go up whenever real estate investments by the insurance companies take hits and lose money. Hey, they got to stay profitable you know.

  26. 26.

    Rosali

    August 22, 2009 at 6:50 pm

    Stuck on a DCA tarmac now. Premiums were raised for many specialties but the docs calling for tort reform got punk’d in that their premiums were not decreased. Ins companies reaped all the profit which should not have surprised anyone.

  27. 27.

    Rosali

    August 22, 2009 at 6:57 pm

    FL voters approved MedMal atty fee caps in 2004. However, a client can waive those fee caps and sign an agreement with an atty to pay more. It may be a good idea to do so if you have a good case and a good atty and your atty will have to front a lot of costs to pay for experts and trial prep.

  28. 28.

    sus

    August 22, 2009 at 7:04 pm

    Don Surber mentioned Tort Reform yesterday. Amazingly enough, he said unconstituional on a fed. level.

  29. 29.

    Ailuridae

    August 22, 2009 at 7:16 pm

    @John Cole:

    I actually thought anesthesiology was one of the bigger ones too.

    The malpractice angle is a classic Conservative with a big C canard. Malpractice costs aren’t even going up at a comparable rate as inflation while health insurance costs are rising at a rate of four-fold or better against inflation. Additionally in states that have really regressive and/or corporate friendly tort statutes there hasn’t been any ability to more greatly control costs. Finally its a tiny portion of the overall healthcare costs pie – you basically can’t find anyone with real numbers that all medical malpractice suits (including the many that have merit) even amount to 1% of the total costs.

  30. 30.

    Martian Buddy

    August 22, 2009 at 7:27 pm

    Anyone who thinks that the answer to health care reform is tort reform and deregulation really out to think long and hard about cases like this endoscopy center in Nevada whose syringe and one-time drug vial reuse resulted in almost 40,000 people having to be tested for hepatitis C. The Nevada legislature is currently looking at repealing their damage caps in part because of this case.

  31. 31.

    Martian Buddy

    August 22, 2009 at 7:30 pm

    “Out” = “ought.” I really out to slow down and proofread before hitting “submit.”

  32. 32.

    Notorious P.A.T.

    August 22, 2009 at 7:34 pm

    “look for MoDo to compare Obama to Don Draper at some point”

    Aw man I wish I could buy stock in that.

  33. 33.

    Notorious P.A.T.

    August 22, 2009 at 7:36 pm

    “We’ve done about as much tort “reformin’” as we can down here in Texas, yet medical care hasn’t improved and malpractice insurance costs keep going up”

    Doesn’t Texas have the county that spends more per capita on medical care than any other?

  34. 34.

    Just Some Fuckhead

    August 22, 2009 at 7:46 pm

    No issue with tort reform but it wouldn’t be necessary if our doctors and nurses weren’t killing a hundred thousand people every year through medical errors and likely injuring many more than that. I’ve found you can generally avoid being sued by not giving people a reason to sue you.

  35. 35.

    Jackie

    August 22, 2009 at 7:47 pm

    My understanding of other countries for liability is that the loser has to pay the winners expenses. I don’t know much about lawyering but it would seem to me that would weed out the most egregious suits and leave everyone with a legal recourse. It seems like a simple fix to me. If you have a good case your attorney would be likely to take the risk on your behalf

  36. 36.

    MikeJ

    August 22, 2009 at 7:58 pm

    My understanding of other countries for liability is that the loser has to pay the winners expenses. I don’t know much about lawyering but it would seem to me that would weed out the most egregious suits and leave everyone with a legal recourse. It seems like a simple fix to me. If you have a good case your attorney would be likely to take the risk on your behalf

    Your lawyer is already bearing the risk since he or she won’t get paid unless you win. They won’t waste time taking losing cases to court. For frivolous suits, there already exist sanctions, and courts can and do hand them down. But just because somebody wasn’t able to prove malpractice doesn’t mean their case was frivolous.

    I’m troubled by the number of people who are willing, eager even, top give up the right to redress. There’s already a cap on damages: whatever the judge or jury decide on.

  37. 37.

    Chad N Freude

    August 22, 2009 at 8:52 pm

    @Ejoiner:

    Harvard! Oh, sure, take that hotbed of liberalism as a source of research. I know for a fact that Harvard has Cooperative Society. And the Kennedys went there. Also. And did you notice that the author of the Harvard paper says (about other possible causes of premium increases):

    Our study cannot disentangle the role of these
    competing explanations

    which renders the entire paper meaningless.

    I’ll believe when Sean Hannity and Glen Beck say it. Also.

  38. 38.

    Chad N Freude

    August 22, 2009 at 8:59 pm

    @MattR:

    change the law so all punitive damages do not go to the victim (that is what compensatory damages are for) but instead are given to charity medical services.

    I really like this idea.

  39. 39.

    Chad N Freude

    August 22, 2009 at 9:00 pm

    Tried to emphasize the “medical services” edit in the blockquote but was defeated by software that is smarter than I am.

  40. 40.

    Ejoiner

    August 22, 2009 at 9:42 pm

    @Chad N Freude

    You know, you’re good enough to start a career as a wingnut if your day job falls through!

  41. 41.

    Skippy-san

    August 22, 2009 at 10:00 pm

    Expect also to hear about how “Health Care Reform is ‘unconsitutional’. Some bonehead on my alumni e-mail list started spouting off on that subject a few days ago. I was really suprised that he would make such a claim-until I saw an article by two guys in the WSJ. Two days ago it reappeared in a slightly different form in the WAPO.

    I can think of a lot of arguments to make about health insurance reform-but that was not one I ever would have thought of. Especially since the Supreme Court settled the issue back when Social Security was started.

  42. 42.

    Chad N Freude

    August 22, 2009 at 10:11 pm

    @Ejoiner:

    If you’re referring to my comment at 37, I think you may want to take your sarcasm detector in for a check-up. I thought that the insanity of the rant and the use of “Also” (twice, no less) would signal my intent to the discerning readership of this blog.

    I take your comment as a tribute to my skill as a Master of Wingnut Disguise.

  43. 43.

    Chad N Freude

    August 22, 2009 at 10:14 pm

    @Ejoiner:

    Wait! I reread your comment, and I can see how it can be read as a compliment. (I think it’s ambiguous.) If that’s the case, I apologize.

  44. 44.

    Yutsano

    August 22, 2009 at 10:15 pm

    @Skippy-san:
    Think about the current makeup of the SC though. I could totally see a case getting up to them and Roberts and Scalia totally gutting HCR on “Constitutional” grounds but really it’s all about their narrow ideology. What no one bothers to acknowledge is that whole New Haven firefighter case that they wanted to blast Sotomayor on actually overturned decades of precedent simply because it didn’t match their personal ideologies. It wouldn’t shock me one whit if they totally ignored the precedent that allowed SS to stay law.

  45. 45.

    Chad N Freude

    August 22, 2009 at 10:20 pm

    @Yutsano:

    How can you say that about the strict constructionist, anti-activist justices? BTW, you left out Thomas. And Alito. Also.

    (I have to write this kind of snark to keep from weeping.)

  46. 46.

    Yutsano

    August 22, 2009 at 10:24 pm

    @Chad N Freude: I never count Thomas. EVER. When he has only voted differently from Scalia like twice (that I can recall) then he’s pretty much Scalia’s lapdog. Alito I just like to forget about as much as possible. But yeah, it is a rather unpleasant thought. I think we should just all get drunk like Jacy is.

  47. 47.

    Chad N Freude

    August 22, 2009 at 10:32 pm

    @Yutsano:

    I never count Thomas.

    Unfortunately, the Clerk of the Court counts Thomas’s votes.

  48. 48.

    rs

    August 23, 2009 at 2:08 am

    One complaint I hear constantly is that fear of malpractice suits forces the practice of “defensive” medicine, i.e. ordering unnecessary tests and procedures that have become the legal standard of care, even though the chances of them reducing morbidity or mortality is negligible. I think there’s some merit to the argument, and it probably does add an additional percent or two to the cost of care beyond malpractice awards. However, it’s my experience that what really drives the practice of ordering so-called unnecessary treatment are the advances in medical technology that make various imaging and laboratory procedures more readily available coupled with a sincere desire to minimize the risk of missing a serious illness or injury.

  49. 49.

    Sly

    August 23, 2009 at 3:57 am

    About the tort reform: I heard somewhere that all this republican carping about “trial lawyers” originates from the pro-democrat leanings of the Association of Trial Lawyers of America. Turn a big donor into an evil cultural force.

    Possibly. It certainly shows the lengths of conservative hypocrisy. These kinds of cases are handles almost exclusively by state courts. So now the party that likes states’ rights and local control, which brought us the dismal system of state-based insurance regulation in the 1940s, are now for draconian Federal mandates on state courts.

  50. 50.

    Jose Padilla

    August 23, 2009 at 9:39 am

    There is no such thing as defensive medicine. It’s a myth. Doctors over-order procedures and tests because they want to make more money. An orthopedic surgeon, say, will purchase an MRI machine along with several other doctors. The machine costs 3 million dollars. What do you think he’s going to do? Every patient who comes through the door gets an MRI. After the MRI, he’ll do surgery at the surgery center he owns along with a couple of dozen other doctors. After the surgery, he’ll send the patient to the rehab facility that he happens to own.

  51. 51.

    Jose Padilla

    August 23, 2009 at 9:39 am

    There is no such thing as defensive medicine. It’s a myth. Doctors over-order procedures and tests because they want to make more money. An orthopedic surgeon, say, will purchase an MRI machine along with several other doctors. The machine costs 3 million dollars. What do you think he’s going to do? Every patient who comes through the door gets an MRI. After the MRI, he’ll do surgery at the surgery center he owns along with a couple of dozen other doctors. After the surgery, he’ll send the patient to the rehab facility that he happens to own.

  52. 52.

    rs

    August 23, 2009 at 11:26 am

    @Jose Padilla: You’re wrong. I see it happening daily in the ER where I work (where any procedure is inherently more expensive by virtue of occurring in an emergency setting). There is a perception among many physicians that there is a big, bad trial lawyer waiting to leap on any mistake or misdiagnosis. Some tests are ordered solely to confirm one’s clinical judgment. But, like I wrote, it’s mostly because of concern for the patient (not necessarily it’s effect on their finances) and the access to the technology.

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