Texas Study Casts Doubt on Need for Tort Reform
My Dad addresses this one far better than can I:
Gosh, could it possibly be that The St. Paul’s decision (they’re a big malp carrier) to invest heavily in Enron (true fact) may have had something to do with the need for them to raise rates? Say it ain’t so, Joe!
I received a newsletter a few weeks ago from a plaintiff’s malpractice lawyer in which he made the statement that over 50% of all malpractice awards are attributable to less than 5% of the doctors. If that’s true, it’s certainly another approach to the problem.
As I’ve said before, I support the concept of tort reform aimed at weeding out frivolous suits. I really do. The reasons were really brought home to me when Oliver was having his surgery. I wanted Dr. McDonald to be at his best. What if somebody with little other basis for a claim other than a poor result, which, unfortunately happens sometimes even if the doctors do everything right, had sued him for $25 million a week before. Would I get the real Dr. McDonald, or a bummed out, stressed out shell of a doctor with more of an urge to resent than to help his patients?
The problem is, caps on awards attack the problem in a ludicrous, completely bass-ackwards way. If someone is very badly injured, and a jury is reasonably convinced of the doctor’s fault, and as a result the jury, but for the cap, would have awarded that person millions of dollars, I’ll damn well guarantee you that that person’s claim wasn’t frivolous.
You know, in an odd way, maybe passing the caps into law will be a good thing. The rest of the country won’t be any different than Texas. Five years into caps, when doctors are still being forced out of the practice, especially from high-risk specialties like gynecology, radiology and emergency medicine, as a result of skyrocketing insurance premiums, maybe at that point we’ll quit pointing all the blame at the convenient whipping boy (lawyers) and get closer to the heart of the matter.
There’s one other aspect of the situation that I find amusing. I agree that one of the reasons medical care has gotten expensive is that, in response to the perceived malpractice crisis, docotrs are practicing “defensive medicine,” by ordering test after test after test, bringing patients in for numerous follow-up visits, etc. For the people paying the bills, that sure sucks. But, er, uh, who are they paying that money to?
I just read an article in the Illinois Bar Journal suggesting what could be an interesting and productive approach to the real runaway verdicts that are aberrational, and unfortunate in that they exhaust the ability of doctors to insure against them at a reasonably affordable cost. Sometimes cases go to trial, not because there is a dispute over liability, but rather because the two sides can’t agree on fair damages. At trial, the plaintiff is then constrianed to ask for the moon and the stars, and the defendant is constrained to suggest things like that the plaintiff won’t really be seriously inconvenienced by, say, the removal of her pancreas, liver, a lung and a kidney. To avoid against aberrations in either direction, parties have begun entering into “high-low” agreements (the defendant will pay not less than X nor more than Y). I think they’re a great idea, because they function as caps, but in a fair and practical, rather than an arbitrary, way.
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