Rebirth of Reason

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Post 0

Wednesday, September 22, 2004 - 8:16amSanction this postReply

While I agree with some of what you said there are two factual errors in the article.  You say,

 No other person or entity being sued in any other type of lawsuit . . . receives this "report first" procedural protection afforded to doctors.
That is not true.  I am not surprised that most people don't know this, because I found this out quite by accident.  I was acting as an arbitrator in a civil case in Arizona and discovered that there is a similar "report first" requirement" for a lawsuit involving professional conduct against a large class of professionals including architects and engineers.  The purpose of the requirement is to deter fraudulent nuisance lawsuits--not to limit damages.  I don't recall all the professions included in this requirement, but architects and engineers were sued in this elevator accident case so I know they are included.   Arizona is not the only state that has such a procedure for professionals other than doctors.  (There is a significant question as to whether this statute is constitutional under the Arizona constitution.)  These statutes are not well publicized, but they do exist.  Thus the insurance lobby and the doctors have not succeeded in setting up a procedure that is unique, and not enjoyed by other professionals.

You also say,

 Instead of allowing the twelve people with the most information and knowledge of the case (the jury) to fix a precise amount which is necessary to compensate the wrongfully injured person, the insurance industry is lobbying hard for caps on damages.
The Seventh Amendment to the United States Constitution requires trial by jury in some civil cases.  There is no requirement that the jury be composed of 12 people.  Indeed it is a lesser number in many states.

Much of the remainder of your argument is compelling.  However, including these errors weakens your case.


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Post 1

Wednesday, September 22, 2004 - 6:19amSanction this postReply

My approach to statistical and economic claims such as those contained in this article is to begin as a sceptic and see if the claims hold up to scrutiny.  In this case that’s a natural stance anyway given my a priori belief that the author is wrong.  In my opinion, juries in this day and age are likely to be biased in favour of claimants given the culture of victimhood that we live in.  I am also aware of anecdotal evidence that suggests medical malpractice insurance premiums have increased hugely (in Australia anyway, which is following the US example of high payouts).

So I checked one or two of the sources and claims here. Starting with this one:

“The median inflation-adjusted payout in all tort (personal injury) cases dropped 56.3% between 1992 and 2001, to $28,000. ("Civil Trial Cases and Verdicts in Large Counties, 2001," Bureau of Justice Statistics, U.S. Dept. of Justice, 2004.)”

In fact, “all tort cases” includes the full range of sources of injury, not just medical malpractice, including automobile, premises liability, slander, “animal attack” and many more. Medical malpractice made up just 14.5% of all tort cases in 2001.

While the median jury award has fallen across all tort cases, this is largely because of a fall in the median of automobile torts, which makes up 53% of all torts, and for which the median payout has fallen by 56.8%. The median award in medical malpractice suits has risen by 70.4% to $431,000.

In any case, it is not appropriate to look at just the median award. Risk aversion means that insurers will be concerned about the distribution of payouts. The same report reveals that the average payout was $1.93m, significantly higher than the median and indicating that the distribution is significantly positively skewed (ie. risky for insurers). This is confirmed by a comment that one in three plaintiff winners received $1m or more.

This doesn’t disprove the entire thesis of this article, just one of the pieces of evidence used to support the conclusion.  If I had more time I might look at some of the other claims in the article, such as that caps don’t lead to lower insurance premiums. Such a claim needs to be supported with a logical explanation as to why not? (Not that I necessarily support the idea of caps – I’m sure there are better means of improving the legal process and the evaluation of liabilities).

Post 2

Wednesday, September 22, 2004 - 9:06amSanction this postReply
I agree, my life is worth more than $250,000 or whatever amount the Republicans agree on. If anything, the evidence you site shows that the lack of tort reform has made people more accountable.

Post 3

Wednesday, September 22, 2004 - 11:55amSanction this postReply
I was once on the jury pool for a malpractice case. Potential jurors with undergraduate degrees in any scientific, technical, or quantitative field, and all holders of graduate and professional degrees were excluded from the jury. I have been told that it is standard practice, on the part of the plaintiff's bar in malpractice cases, to use preemptory challenges to eliminate from the jury anyone who might understand the medical evidence, or who would be able to evaluate the credentials of the "expert" witnesses. The jury that was eventually chosen consisted almost entirely of the uneducated and the borderline-retarded.

I agree that award caps are not the answer. But as long as competent and educated people are systematically excluded from trial juries, an appeal to the principles of Objectivist epistemology is a bizarre violation of the contextual scope of those principles. I would propose an alternative solution to the problem of patently ridiculous verdicts: eliminate preemptory challenges of jurors, at least in cases involving expert testimony. The presence of people of reason on the jury would be the most effective means to prevent unreasonable verdicts.

Post 4

Wednesday, September 22, 2004 - 1:16pmSanction this postReply
Some of those who advocate limiting malpractice verdicts have another, much more responsibility-destroying and freedom-destroying agenda.

Post 5

Wednesday, September 22, 2004 - 1:39pmSanction this postReply

It would have been more accurate to say that in the majority of jurisdictions, no one other than doctors get that procedural protection. But it's still a procedural hurdle that no other group enjoys on such a scale. Damage caps are another hurdle, and are simply a means to make malpractice claims so cost-prohibitive that no one can find a competent attorney to handle their claim.

Whether the Constitution uses the word "12" or not is immaterial, in my opinion, and is a bit of a quibble.

I'm sorry that you find that these peripheral issues weaken the argument.

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Post 6

Wednesday, September 22, 2004 - 10:15amSanction this postReply
It would have been nice for Mr. DeSalvo to have disclosed his occupation or whatever else might explain his obvious, deep prejudice against insurance companies. He has little or nothing negative to say about other relevant parties in this matter -- trial lawyers, doctors, and irrational juries.

Doctors want caps on rewards for *non-economic* damages (pain and suffering and puntive damages) in medical malpractice suits because it limits their medical malpractice premiums. In Los Angeles, where there are caps, an obstetrician pays about $65,000 per year in medical malpractice premiums. In Miami, Florida, where there are no caps, an obstetrician pays about $250,000 per year. Where is Mr. DeSalvo's vitriol for doctors?

Insurance companies are *contractual* providers. If the insurer wants to limit its dollar exposure to non-economic damages when insuring a doctor, why shouldn't it be allowed to do? If the doctor then has a judgment against him in excess of that amount, then the claimant can sue for the excess against the doctor (not the insurer).

But suppose a case arises where the claimant sues for more than the policy limit. In the real world, where there is no cap by law, juries routinely and blatantly disregard *contractual* provisions in the policy the insurance company has with the doctor. They make a judgment against the insurance company, guided by the "deep pockets theory" -- all insurance companies are profitable and immensely wealthy. In some parts of the country it had been shown that about 2/3rds of the money paid out in medical malpractice claims have been for non-economic damages. And we all know who gets a large part of that money -- not the claimant but trial lawyers.

Mr. DeSalvo laments the fact that (1) a claimant must provide a certified statement from a doctor who opines to a reasonable degree of medical certainty that the accused doctors’s medical service was not merely a "bad outcome," but instead, rises to the level of medical malpractice, and (2) a bad outcomes from risky procedures do not qualify. Mr. DeSalvo might consider that #1 has arisen in large part because the pursuit of non-economic damages from insurance companies has evolved to be like a lottery for trial lawyers (and the claimants), and the trial lawyer does not have to compensate the insurance company for its legal expenses when the trial lawyer loses the case. As for #2, why should the insurance company suffer when the patient (or power of attorney) *knowingly* choose a more risky procedure?

Mr. DeSalvo further shows his prejudice by including the irrelevant. "America spends more on dog and cat food each year than all medical malpractice payouts combined". I have never smelled any dog or cat food that doesn't stink, just like his bringing this up. "The median inflation-adjusted payout in all tort (personal injury) cases dropped 56.3% between 1992 and 2001, to $28,000."  "The filing of personal injury cases has declined 4% since 1993." Besides the fact these alleged statistic are probably highly misleading, it is about personal injury cases, not about medical malpractice cases.

As for my personal disclosure, I am actuary, but not for medical malpractice insurance. Regardless, being an actuary I have some appreciation for the difficulties of the pricing of insurance, especially when the claim frequencies and amounts are very unpredictable. When they are too much so, the prudent thing to do is limit the exposure or not even insure the risk.

Merlin Jetton

Post 7

Wednesday, September 22, 2004 - 5:28pmSanction this postReply
If the skyrocketing costs of malpractice insurance have nothing to do with malpractice claims, then what is behind these exorbidant premiums?  If the high costs are simply a result of gouging on the part of the insurers, then wouldn't free market economics say that another provider would be Johnny-on-the-spot offering an affordable rate that would still yield a profit?   The fact that were not seeing this happen suggests to me that insurance companies are legitimately concerned about the increasing number of malpractice claims and the size of the respective awards.

Post 8

Thursday, September 23, 2004 - 6:58amSanction this postReply
A priori conclusions, anecdotal 'evidence' that intelligent people are being left off juries, unsubstantiated repetition that there are 'skyrocketing' numbers of claim or awards, the suggestion that, because I'm a lawyer, my position and the bare facts cannot be trusted. A couple of the posts ignore even the basic information provided in the article which answer their questions. None of this changes the facts I cited in the article that the number of tort and medical malpractice claims filed ~aren't~ skyrocketing, the conclusion of the GAO that bad investments, not tort payouts, have affected the insurance industry's bottom line (and that the insurance companies, the AMA, and their lobbyists are out and out LYING about it), and that an all out assault on the envy of the world, our jury system--the same one we allow to decide whether people will live or die in the criminal law context-- is under way to protect bad doctors who are crippling and killing people. And only to protect them against the most catastrophically-injured patients, not the ones who sustain a 'ffrivolous' injury.

I had begun a detailed, point for point answer to every criticism. Then my computer crashed, and I lost it half-way through, but I'm glad that I did. There is ample further support for my article all over the internet. Like anyone who doesn't have insurance industry type dollars to market their ideas, the internet is a useful tool in that regard. There are explanations all over the internet describing the movements of insurance companies in and out of various markets, and about all of this. It's up to you. Stick with a priori conclusions, pay attention to dollar amounts paid without considering the harm they are meant to make up for, and distrust juries and their decisions because it is the in vogue position these days. Or look more closely at this issue and come to a fair, examined opinion based on some facts. If you do not, the throat you cut is your own, because this is just one step on the path to eliminating the jury system in favor of a system that is more 'fair' to powerful monied interests.

Objectivists believe in the validity of the senses, and the capability of man's mind to accurately process that evidence. This is precisely what many people doubt their fellow citizens are capable of. It's either-or.

Post 9

Thursday, September 23, 2004 - 11:59amSanction this postReply
I had begun a detailed, point for point answer to every criticism. Then my computer crashed, and I lost it half-way through
That's a pity, because this post doesn't substantiate anything.  All it does is level various claims about people's responses, without identifying whose responses you are actually talking about.  I think I can identify three claims against my response, but I can't answer them because I can't know if they are truly directed at my post or not.

And then you tell us its our responsibility to do the leg work to prove your case. Sheesh!

Post 10

Thursday, September 23, 2004 - 4:46pmSanction this postReply
Tim: My point in the last point was essentially that, other than your response which addressed the facts cited, most of the criticisms were responses based on the anecdotal, or were refrains of what is being sold to the public. How can I respond to that stuff if that is the standard of proof that decides the issue? It would be an exercise in futility.

If you would like a more detailed response to your observation that average medmal verdicts are significantly positively skewed, ask yourself why that might be, and what those numbers mean. Are high numbers evidence of frivolous lawsuit? Of runaway juries? These are certainly the conclusions some people would like us to make. But without the details of these 'average-skewing' cases, how can we decide whether they are appropriate or not? We would need the case details to make that determination. The same facts a jury has when it renders a verdict. The same facts that damage caps ignore when we place the legislature's judgment from afar ahead of their jury's.

Post 11

Thursday, September 23, 2004 - 5:51pmSanction this postReply

Since you are attempting to dismiss my first-hand experience as "anecdotal", please answer the following questions:

Have you ever participated in jury selection?

Have you ever exercised a pre-emptory challenge to dismiss a juror who was more educated or more intelligent than the median for the relevant jury pool?

Have you seen this done by other malpractice lawyers?

A straight answer will do. Otherwise, one may suspect that your dismissal of my experience as "anecdotal" was a dishonest evasion of reality.

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Post 12

Thursday, September 23, 2004 - 7:04pmSanction this postReply
Scott, I confess to missing the area of your article that addressed a possible reason behind the increased malpractice premiums.  You addessed the issue with only one sentence, and it occured near the very end of the article, so it didn't initially register with me the first time I read the article. My apologies.

You say:

Rather than concluding that large malpractice verdict drove premiums up (of which the GAO found no evidence), it instead noted that "...malpractice insurers experienced sharply reduced gains on their investments from 1998 to 2001." (Medical Malpractice: Implications of Rising Premiums on Access to Health Care GAO-03-836.)

I tracked down this document you cited.  It can be viewed in pdf format here.  Like many government reports, I found it too long and cumbersome to scour in search of the exact sentence from which you extracted the above fragment.  Please provide us with the complete sentence of the paragraph in question so we can see if the GAO in fact concludes that the losses in question are indeed the underlying cause of rising malpractice premiums, as you suggest is the case.

Interestingly, though, in the brief scan I was able to do of the document, I did come across a noteworthy observation made by the GAO on page 30 of the linked pdf:

"Premium rates for the physician specialties of general surgery, internal medicine and OB/GYN - the only specialties for which data were available - were relatively stable on average in most states from the mid to late 1990's and then began to rise, but more slowly among states with certain noneconomic damage caps.  Malpractice claims payments against all physicians between 1996 and 2002 also tended to be lower and grew less rapidly on average in states with these damage caps than in states with limited reforms;"

Based on this assessment, are we still to conclude that damage caps don't affect premiums?

Indeed, OB/GYN is one practice area that is seeing skyrocketing costs - even someone as unfamiliar with this issue as myself is hearing about that.  At a party recently, I met an attorney who was working on a fairly high profile malpractice case here in Chicago involving Northwestern Memorial Hospital.  You might be familiar with it.

The case was in fact an egregious instance of malpractice.  A woman in labor needed an emergency C-Section.  Doctors paged the attending anesthesiologist at least twice before he ever answered.  His delayed response resulted in a loss of oxygen to the fetus, which in turn lead to permanent brain damage to the child.  It later came out that the page was not answered because the anesthesiologist was alone in a private room getting it on with a nurse.    

Once the facts were established, Northwestern got their check book out and was prepared give the victim's family over $20 million no questions asked.  You would think that would be the end of it, but of course the plaintiffs, at the urgings of their attorneys, thought they were entitled to $60 million.  The settlement ended up being $35 million, and  I can't help but wonder what that kind of money is needed for.  

Let's say for arguments sake that the family sees half of that sum.  If that child lives to be 100, he will have an income of $175,000 per year to pay for his special needs and living expenses.  Is that kind of money really necessary for his condition?  And what's to stop the parents from tapping into that sum to buy a boat and summer home on Lake Geneva?

Post 13

Thursday, September 23, 2004 - 7:18pmSanction this postReply
I wonder if I could pose a question on this:

Currently, any lawsuit against a doctor or medical services provider MUST be brought along with a certified statement from a doctor that he has reviewed all of the pertinent medical records and case information, and that the reviewing doctor holds an opinion to a reasonable degree of medical certainty that the accused doctors’s medical service was not merely a "bad outcome," but instead, rises to the level of medical malpractice. Medical malpractice is generally defined as care which constitutes an act or omission that even a minimally-qualified doctor would not have rendered. By definition, bad outcomes from risky procedures do not qualify.

Are there any criteria that reviewing doctors must meet? And are there any sanctions they suffer if they turn out to be grossly wrong?  If the answer to one or both questions is "no," this procedural safeguard is worse than useless. Take a physician who has not practiced medicine in 10 or 20 years. Stick him in an office with piles of charts and pay him to look for "acts or omissions that even a minimally qualified doctor would not have rendered." What is the guarantee--or even the probability--that this person is actually, factually, distinguishing bad outcomes from genuine malpractice? Low.

This whole approach to medicine is wrong: it's just a total misconceptualization of what medicine is.  The practice of medicine is not primarily one of figuring out what to write on charts and in files; it consists primarily of clinical judgments translated into medical action with charts and files as an afterthought. Not all of what physicians do can be captured in charts, files, records, and even to the extent that it can be, there is a crucial trade-off between doing genuine clinical work and practicing defensive medicine on paper to avoid lawsuits. It's misleading to think that just any physician can study charts and files and distinguish bad outcomes from malpractice. Maybe in some cases, but as a general rule? I doubt it. That simply is not how inductive inference works in any other context.

So there is a sense in which it doesn't really matter whether physicians are the only ones protected by this safeguard or not. It's not clear it's a safeguard at all. We need some better indication that as a matter of causal fact, the reviewing physicians are actually successful at distinguishing bad outcomes from genuine malpractice. The mere fact that they're physicians doesn't prove that. The whole malpractice controversy arises from the fact that physicians can be incompetent in clinical practice. Well, can't physician- reviewers be incompetent at reviewing clinical practice? Who's reviewing the reviewers? And perhaps more to the point, can anyone sue them for malpractice?

Post 14

Thursday, September 23, 2004 - 7:22pmSanction this postReply
Mr. DeSalvo wrote "most of the criticisms were responses based on the anecdotal, or were refrains of what is being sold to the public." False, and there are more problems with his original post than I gave earlier.

He wrote, "the facts of a particular case, including damages testimony from the injured person, of the plaintiff’s treating doctors, of life-care planners who have calculated the precise amount of money that the crippled plaintiff’s future care is likely to require, and of economists who have calculated, down to the penny, the amount of money the injured person has lost by no longer being able to work in their former capacity."

Here he obliterates the distinction between economic damages and non-economic damages. Loss of income and cost of medical care are the former. Pain and suffering are the latter. The caps that many states have legislated are for *non-economic* damages, which putting a dollar amount on is extremely subjective. And given a pitiful individual versus an insurer with "deep pockets", a jury’s decision is inevitable.

In a medical malpractice suit, the defendant and alleged wrongdoer is a doctor or hospital. Yet Mr. DeSalvo seems to believe there should be no limits on the amount that a claimant, with the help of a jury, should be able to collect from an insurer, who is a third party. He shows an utter disregard for: (1) any policy limit the insurer has in the contract *with the doctor or hospital*, (2) the insurer may not have freely entered into the contract in the first place, and (3) the insurer is *not* the guilty party. I suspect that some states' insurance departments prohibit insurers from putting such limits in the policy. Moreover, some states, e.g. NY, have assigned risk pools for medical malpractice insurance. When doctors or hospitals can't get the insurance with the voluntary cooperation of an insurer, they can go to the state, which forces insurers to provide the coverage, while dictating the price and terms, against their rational judgment.

If a jury makes a judgment against a doctor or hospital in excess of policy limits, let them try to collect the excess from the doctor or hospital. Forcing the insurer to pay is wrong; it is not the guilty party. 

In his latest post, Mr. DeSalvo asserts that it was "the conclusion of the GAO that bad investments, not tort payouts, have affected the insurance industry's bottom line." This is quite different from what he said about the GAO report his original article: "malpractice insurers experienced sharply reduced gains on their investments from 1998 to 2001." Insurers have had lower investment income in recent years because they invest primarily in bonds and interest rates have been much lower, not because they have made bad investments.

Merlin Jetton

Post 15

Friday, September 24, 2004 - 4:46amSanction this postReply
Fair enough. Since everyone insists, I will give you all about 3 hours of my time this weekend to explain my position more fully, address your concerns, and I'll even see if I can find other studies and reports which further substantiate my position. I apologize if my former blanket response was a tad strident--I appreciate the response to the article, and you have all brought up great and interesting points. Expect a detailed point for point treatment by the end of the weekend.

Post 16

Friday, September 24, 2004 - 7:22amSanction this postReply

It seems like you've opened a can of worms for yourself here :-)

Good luck with it.

Post 17

Friday, September 24, 2004 - 7:22pmSanction this postReply

Just a tangential comment here, mostly inspired by Mr. Reed's experience.  I had heard of this same phenomenon and fully expected not to be selected for a malpractice suit in Cook County, IL.  In fact, though, I was selected as an alternate.  I listened very carefully to the questions and answers, and could detect no inclination to dismiss educated or intelligent potential jurors.  The foremen of the jury turned out to be a PhD librarian.  Even so, I thought that the jury might find for the plaintiff because of bias.  Again, I was surprised to learn later that the jury found in favor of the doctor.  My experience too is merely anecdotal, but every jury trial I've been involved with has been similar (including a hazardous work-condition suit).


The hazardous work-condition suit was interesting because it was open & shut against the plaintiff but there was one hold-out who had to be basically worn down until they voted with everyone else (the first vote was 11 to 1, I think).

Post 18

Saturday, September 25, 2004 - 11:32amSanction this postReply
The Truth About Medical Malpractice Lawsuits, Part 2

I expected that an article taking issue with the honesty of a big industry (the insurance industry) would not sit well with Objectivists, since we generally revere Capitalism and Capitalists. The idea that a large industry might not be entirely truthful in presenting its reasons in lobbying for jury-infringing damage caps would not sit well with some. Responses to the article were positive and negative. But the negative criticisms of both the article and the position I took have gotten off course, and further responses have made it clear that the responders demand a more detailed, point for point response. For better or worse, here it is. I would like to note at the outset that this article is not meant to be an exhaustive examination, a treatise, book, or an absolutely authoritative treatment of the subject. That endeavor is beyond the scope of this format, and my means. What I would like to do is address some of the particular points raised by the responders to my article, as my failure to do so is being interpreted as evasive. I hope you will all bear that in mind as I respond.

At the outset, I would like to make clear that my intent in the article was to draw attention to what I perceive to be a terrible thing: movement away from trust in the jury system. With an almost-monthly celebrity trial recruiting All-Star teams of obfuscators who make a jury trial a travesty of justice, there is no shortage of motivation to question the jury system. Stories of runaway juries, vast sums of money refused by greedy trial lawyers, and small towns with no doctors available because they cannot afford their malpractice premiums occur all too frequently in the news. No wonder it is a popular notion that there is a “Tort Crisis.”

In defense of the jury system, I focused my article on a particular area wherein the jury system was being challenged: damage caps in medical malpractice lawsuits. A popular ploy by the AMA and the insurance industry (and even George W. Bush) is to argue that: (1) the number of lawsuits and damages awards in medical malpractice cases are skyrocketing; (2) these phenomenal sums are being awarded in frivolous cases; (3) these frivolous cases are costing the insurance industry a tremendous sum of money beyond the amount that they calculate when setting premiums sufficient to ensure payment of claims plus profit to their owners; (4) the insurance companies are losing money as a result; (5) so the insurance companies must raise premiums to outlandish amounts where there are no damage caps; and (6) where there are no damage caps, these high insurance premiums drive doctors out of business.

My position in response to the above is: A. Damage caps infringe upon the province of the jury, and the right to a jury is Constitutionally protected, and also makes more sense than a blanket damages cap; and B. Damage caps do not protect against frivolous lawsuits, do not stop the rise in premiums, and the lack of damage caps cannot be shown to negatively affect doctor availability.

The responses have opened up cans of worm beyond the scope of the article, and seem to attribute arguments and positions to me which I do not hold. Rather than paraphrase every argument in every response as they appear in response to the article, I’d like to address each gentleman in turn. I’ll start with Adam Reed, since he has specific requests for information, and also, he is generally a pretty nice guy, from what I’ve read of his contributions to SOLOHQ.

First, Adam, I don’t mean to dismiss ~all~ anecdotal evidence, or even anecdotal evidence generally, since it provides ~some~ evidence. But reliance on anecdotal evidence can be dangerous because it represents a statistical sample of one. It can also be misleading, because one never knows when a story often repeated is benefitting from dramatic flourish. Here’s another problem:

“I met this carpenter. He told me they all over-charge their customers, and laugh about it. They think it’s funny. They purposely overcharge white collar guys. It’s a well-known fact in the industry. In fact, I had the carpenter work on my house, and he overcharged me.”

See the problem with accepting this as evidence, without something more to substantiate it? It’s evidence of something (that you ran into a crooked carpenter) but may not be determinative of the reason for which it is cited (that all carpenters are crooked, and they overcharge white collar guys).

In answer to your more specific queries, yes, I am a trial lawyer. Yes, I have chosen a number of juries in a number of different types of cases, ALL of which involved medical issues of varying degrees of complexity (all injury cases do). I currently represent injured people, though I used to do defense work which included general torts, medical malpractice, products liability, and even contract cases. I have NEVER excluded a juror because I though that they were too smart or too technically proficient. I know of only one lawyer who ever told me that “you pick the dumb ones if you’re a plaintiff, you pick the accountants if you’re a defendant.” Incidentally, I don’t think he is a particularly good lawyer.

It would be helpful on this issue for me to provide more information on typical jury selection. Both parties participate in selecting the jury–it is not jury the Plaintiff’s lawyer who chooses who will hear a case. Both parties (Plaintiff and Defendant) typically get 5 peremptory challenges, and an unlimited number of challenges ‘for cause.’ This essentially means that both the Plaintiff’s lawyer and the Defense lawyer can each eliminate 5 people from the jury for any reason or no reason (the notable exception is a “Batson” basis–you are not allowed to exclude a juror solely on the basis of race). After your peremptory challenges are gone, any other juror you want off of the jury must be shown to be biased. In other words, you must prove through their answers to your voir dire questions, that the person will be unable to fairly decide the case. Being smart or technically proficient is NOT a basis for being excluded. In other words, even if the “sinister” injury lawyer wanted to get rid of the smartest people in the pool, he’s screwed after he dismisses the first five smart people he comes across.

I do not think the “smart for defendants, dumb for plaintiff” method actually IS a method published or promoted by anyone. There are several theories on how to pick a favorable jury. In “David Ball on Damages,” David Ball advocates strongly for asking voir dire questions which reveal each individual juror’s attitudes about money, the willingness to award money, and the degree to which jurors believe that all injury lawsuits are put-ons or scams. He specifically warns AGAINST making assumptions about how people will receive evidence based upon their IQ or education, because, he says, such generalizations have so little correspondence to reality that you may as well pick random names out of a hat. Or, in other words, a wealthy Yale man may be miserly with money (and award only the barest of compensation), or may value the injured person’s life at the same rate he does his own ( and compensate at a rate much greater). Incidently, David Ball has years of experience polling actual and mock juries for what their decisions were and their bases, and this is the basis for his conclusion that it is folly to retain jurors solely on the basis of their education or profession.

Even the industry-standard “Trial Techniques,” by Thomas A. Mauet, (widely used in lawschools and to be found in many lawyers’ bookscases) charges lawyers with creating a favorable juror profile, based on their beliefs and attitudes, not their profession or intelligence, and selecting jurors who are closest to the ideal. For example, if you represent a retired little old lady who was struck by a car driven by a teen and broke her hip while crossing the street, if you represent the little old lady, you might want other retired or older folks, women, those who themselves have been struck by a car, or have otherwise been injured, who have no children. If you represent the defendant, you’ll want younger jurors without close familial ties, people who are healthy without prior accidents or injuries, people who have never been involved in an accident or who were involved in minor, no injury accidents.

In short, I think it is untrue, and a terrible mistake for any trial lawyer to attempt to include or exclude people based on their career, technical expertise, or perceived intelligence. I don’t do it, and I don’t know a single lawyer who uses that as an important critieria in jury selection.

Adam, you write :”Potential jurors with undergraduate degrees in any scientific, technical, or quantitative field, and all holders of graduate and professional degrees were excluded from the jury.” I know that intelligent, or professional, or technical people are not “officially” prevented from serving on juries. I wonder, was this done piecemeal (juror by juror), by one or both lawyers, or by the Judge? My guess is that, in course of fairly detailed voir dire questioning, the lawyers (both defendant and plaintiff’s) uncovered beliefs or attitudes which made them, one or the other, believe that the professional on your jury would not be the best to hear the case. Part of this may be because people with technical expertise are not allowed to rely on their own specialized knowledge to render a verdict, but instead, MUST rely on the opinions of the experts in the case. In other words, if you were an orthopedic surgeon, and you heard an injury case and the plaintiff’s or defendant’s orthopedic expert said something that was wrong, or gave a patently ridiculous opinion, and you knew it was wrong based on your expertise, you are not allowed to consider that in deciding the case. Some attorneys take the decision away from such jurors by striking them peremptorily, or for cause, if they say that they would be unable to put aside their knowledge of appropriate medical care in evaluating the evidence. That is why your suggestion that we “eliminate preemptory challenges of jurors, at least in cases involving expert testimony” wouldn’t help–you could be stricken for cause. But I do agree with your conclusions that “The presence of people of reason on the jury would be the most effective means to prevent unreasonable verdicts.” That’s why it is always a good idea to have smart, diligent, interested jurors hearing cases.

Next, the handsome and talented Tim Sturm, who is not sold on the efficacy of damage caps, but also is not thrilled with the factual support in the article. Tim admits that he believes that juries are slanted towards claimants because of a culture of victimhood. That’s beyond the scope of the article, and I do not know how one could test that hypothesis. I can tell you anecdotally that it certainly doesn’t seem that way when I am in front of a jury on a tough case! It doesn’t have much to do with whether we should infringe upon the province of juries in medical malpractice cases, either. No denying it, though: Tim deals me my toughest blow.

Essentially, Tim looks at a study cited in my article and checks it in more detail than I did (I just cited the general tort number and didn’t bother digging for the case-type breakdown). The study shows that the number of medical malpractice lawsuits have declined by 14.1% from 1992 to 2001, and that the Plaintiff wins in a medical malpractice case only 27% of the time (as compared to 56% overall). The study also shows a rise in the median award in medical malpractice cases–a whopping 70.4% increase. The study also mentions that the malpractice median award figure is not adjusted for inflation in health care services, and directs readers to the US Department of Labor’s website (www.bls.gov/cpi/home.htm) in order to adjust the figure. Frankly, I’m not sure what this means. If the medical malpractice figure has not been adjusted for inflation at all, then the 70.4% becomes merely 26% when it is adjusted. If the median figure has been adjusted for inflation, then it would only make sense to direct readers to adjust for health care inflation if that rate increased in the same years dramatically faster than the standard inflation rate. This may be true, based upon this study (http://www.bls.gov/opub/mlr/1996/07/art3full.pdf), which indicates that health care costs rose 11.5% from December 1992 to December 1995. It is hard to know what to make of a disparate inflation rate for only a portion of awarded damages, when one does not know the average percentage of awards earmarked for past and future health care services. Of course, this does not change the fact that there was a “significant” increase in the median amount of malpractice awards. It seems I sabotaged myself by including a quick and sloppy statistic that, upon further scrutiny, does not support the point I was attempting to make.

But what can we conclude from this increase? To be certain, the laws of economics still exist. More money paid by insurance companies means some greater degree of economic strain. But is the strain of increased payouts on medical malpractice litigation in states without damages caps sufficient to explain the increses in malpractice premiums? Do caps halt the rise in premiums? Do the rising premiums really drive doctors out of business? No, no, and no. I will repeat what I have already cited in the article so no one has to jump back and forth.

Premiums are higher in states with caps than in those without. The average malpractice premium in states without caps was $35,016 in 2003. The average premium in states with caps was $40,381. (Medical Liability Monitor, 10/03)

The 2003 Weiss Report found that despite caps on economic damages in 19 states, "most insurers continued to increase premiums (for doctors) at a rapid pace, regardless of caps." The report found that insurers failed to pass along any savings to physicians in states with caps by refusing to lower their insurance premiums, and that caps only slowed the increase in the amount of damages insurers were required to pay out. (Weiss Report, 6/3/03.)

Doctors are not fleeing states in droves, despite increasingly frantic and unsupported claims from the American Medical Association, the insurance industry and their allies. Independent assessments by state officials and the media have found that the number of doctors in many states, including Florida, Illinois, Ohio, Pennsylvania and Washington, has remained stable and in most, has actually increased. ( FL, Palm Beach Post Editorial, 7/16/03; OH, Toledo Blade, 7/17/04; PA, Allentown Morning Call, 4/24/04; WA, Seattle Times, 2/23/04).

"[M]any of the reported physician actions and hospital-based service reductions were not substantiated or did not widely affect access to health care...some reports have received extensive media coverage in each of the five states, we found that actual numbers of physician departures were sometimes inaccurate or involved relatively few physicians," and at any rate, they "did not find access to these services widely affected." (Medical Malpractice: Implications of Rising Premiums on Access to Health Care GAO-03-836.)

I leave this topic with two thoughts. First, Plaintiff’s lawyers won 65% of their bench trials, but only 53% of their jury trials. In addition, the median award amount for automobile litigation dropped by 56.8%, and premises liability dropped by 17.6% in the same time period as cited above. Yet even in light of these statistics, plaintiffs lawyers have not called for a marginalization of the role of juries in the justice system, though these statistics suggest that it might be prudent for their bottom line to do so. And the Products Liability defense bar has not launched a publicity campaign against the Jury System, despite a 287.9% increase–a whopping $543,000 median payout, higher than the medical malpractice median payout by $112,000.00. I like to think that this might be the case because lawyers generally appreciate the virtues of the jury system, but some businessmen and doctors do not.

Second, how do we know that every penny of that $431,000.00 median payout was not deserved by the injured Plaintiffs? We cannot say one way or the other, because we have as much information regarding those cases as do legislators who would limit damages to $250,000.00. We do not know what the doctor did. We do not know what harm the plaintiff suffered. How can we tailor an appropriate remedy? Is legislation that minimizes risk for a company whose business is managing risk a laudable aspect of a free market economy? Does it make sense to reward a company and artificially keep it in business by protecting it from its own risk-managing mistakes? Or is it the worst kind of political favoritism at the expense of citizens’ right to be compensated, and in favor of a conflict resolution system that doesn’t sanctify and respect each individual’s mind, instead forcing the judgment of an uninvolved, uninformed individual upon us all? For me, it all comes back to the individual, and fundamental fairness. How can we ~really~ interpret the propriety of these numbers–other than to simply judge the truth or falsity of a particular factual claim–without being on each individual jury ourselves? I submit that we cannot.

On to Merlin Jetton’s queries and arguments. Merlin, you write: “Doctors want caps on rewards for *non-economic* damages (pain and suffering and puntive damages) in medical malpractice suits because it limits their medical malpractice premiums. In Los Angeles, where there are caps, an obstetrician pays about $65,000 per year in medical malpractice premiums. In Miami, Florida, where there are no caps, an obstetrician pays about $250,000 per year.” But you provide no support for these contentions. First, I have twice cited the fact that malpractice premiums in non-cap states are lower than in capped states, which would seem to cast some doubt on your position. Where do you get your geographic malpractice premium numbers from?

You are correct that insurers are contractual providers with doctors–they can negotiate whatever terms they desire. As a practical matter though, we both know this is not the case. Insurers are monstrous, monolithic entities who offer insurance ‘packages’–and you take them or leave them. I do not think doctors would buy a policy that did not afford them complete protection, but they might, if the policy were offered at a substantial discount. My personal feeling is that most doctors are ‘sleeping with the enemy’–it is the insurers who have sold doctors a bill of good about why premiums are going up, and doctors have bought it.

But on to your hypothetical. You make a very important presumtion that is not right. Juries are not allowed to hear the words ‘liability insurance’ at trial. Lawyers and witnesses are not to talk about it or mention it. If a jury asks the Judge about insurance during deliberations, the Judge gives a canned response similar to "Whether any party is covered by a policy of insurance has no bearing on any of the issues you must decide in this case.” If you think about it, that is a good idea. Jurors who know that an award will come out of an insurance company’s pocket will probably be more generous than if they think it is coming out of a private person or business’s pocket. Conversely, many people have an understanding that doctors and businesses are insured, so it may be a moot point. But insurance really isn’t an issue. Determining whether a doctor committed malpractice or not, and whether and to what degree thee plaintiff was harmed, has nothing to do with insurance. Ability to pay a judgment is not an issue to be considered in an injury suit (unless punitive damages are a factor). So, your hypothetical is off base.

You next bring up a couple of points the really bear more comment. First, you seem to suggest that lawyers somehow get more money from non-economic damages, and that trials are like a lottery for Plaintiff’s lawyers because insurers cover entire verdict amounts up to policy limits. You should be aware that, at least in Illinois (but I understand that this is the case in many jurisdictions), there is a compensation schedule for medical malpractice lawyers. Most injury lawyers charge 33 1/3% of ALL sums recovered–not just doctor bills, but also for amounts awarded for non-economic damages, like pain and suffering, loss of a normal life, and disability. In medical malpractice cases, lawyers still get their percentage of all sums awarded, but as the award goes up, the percentage fee goes down. So, for example, for the first $175,000, the lawyer may take his 33 1/3% fee, but for amounts over $1 million, the fee is 25%–-but it is still from the entire amount recovered, not just non-economic damages.

Here is the crux of my disagreement with you: I believe that non-economic damages are the most important part of damages in a serious injury case. Economic damages, like doctor bills and lost wages, compensate you so you can pay your doctor and keep paying your rent, but nothing more. They are not designed or intended to make up for daily pain that the injured person may feel for the rest of her life, or for her lost ability to walk, or see, or hear, or feel, to play with her children, to even hold her child, to go to a high school dance, to go out in public without being stared at, to find a lover, to be wed, to live on one’s own. Stop for a second and think about how you would feel about yourself and your life if you could do and enjoy all of those things, and then one day, because someone else was careless, you could never do them again. If a jury is willing to pay 10 million dollars for a lifetime of required future medical care for a 11 year old girl paralyzed from the neck down, and will pay her 5 million because she will never be able to have gainful employment (lost future wages), stop to think of her ~human~ losses. Will she ever have her first kiss on the dance floor of her Junior High Dance? Will she make the same girlfriends that she otherwise would have kept for a lifetime? Will she ever feel the sexual touch of another? Will she ever even have sex? Will she ever be a heroic, productive achiever like she had the potential to be before the careless error? Fine, pay the docotrs their 10 million, and pay her landlord the 5 million, but is another several million for a lifetime of loss too much? We know she’ll never walk, but maybe she can buy a new wheelchair, top of the line, every year. Maybe she can get a Special Needs van that helps her caregiver get her around. Maybe she can get the biggest, most impressive television, DVD player, and satellite system every couple years, because that will really be the only way she will ever see the world. Not first hand, but second hand. But doesn’t she deserve the best second-hand we can give her?

Then, you asked why insurance companies should be held accountable for a patient choosing a risky procedure. Well, I covered that–-bad outcomes don’t even make it into suit because of the requirement that cases must be certified as having merit prior to suit, and even if they do, they are routinely dismissed pursuant to Summary Judgment. Summary Judgment is a motion one may bring before the Court after all relevant facts about the case have been discovered, and if, as a matter of law, there is no legal liability based upon those facts, the Motion is granted and the case is dismissed. In this context, let’s assume for a moment that a doctor reviews the file and believes that there is malpractice. If the case is truly frivolous, and is just a bad outcome, the Court will dismiss the case before anyone gets within a country mile of a jury. Not many people are aware of this fact, but they should be. Getting a case in suit is not the only hurdle to recovery. You must actually have facts to prove your case before a jury even gets to look at it. I am afraid that even the most unscrupulous lawyer would be hard-pressed to find a doctor willing to swear under oath that a bad outcome from a known-and-warned risky procedure is malpractice. But even then, he is likely to get blown out on Summary Judgment, after he and his staff have invested hours upon hours working up the file, and after spending probably into the five-figures range of his own money to secure the necessary depositions and expert opinions. I will go no further explaining why there is a very cut-throat economic factor involved in whether a plaintiff's lawyer will take a medical malpractice case, but I will point out three things: (1) medical malpractice cases always involve retaining expensive experts who thoroughly review all file materials before the case goes into suit, and believe me, they do not do it for free; (2) Plaintiff’s lawyers get nothing, no attorneys fee and they do not even get paid the costs they invested in investigation and retaining experts, unless they win; and (3) the number of medical malpractice trials have decreased by 14.1% from 1992 through 2001. You decide whether Plaintiff’s attorneys are really interested in bringing frivolous medical malpractice suits.

Incidentally, I agree with you on at least one point. The reasonable thing for insurance companies to do in light of an unpredictable risk (nothing you have cited indicates that medical malpractice is such a risk) is to limit exposure or not insure the risk. But what is not reasonable is to say that damage caps are required to keep premiums from rising when (1) premiums are higher in cap states than in non-cap states; and (2) rates increase even in cap states. It is not reasonable for a private industry to petition the government to render legislative aid to help it do its business, and in so doing, destroying a Constitutional right.

Mr. Jetton’s second post is rife with the misunderstanding that juries are advised as to anyone’s insurance status. They aren’t. Individuals are charged with paying any amount over their insurance policy coverage. So for example, if I am sued and someone wins 2 million dollars from me at trial (let’s say for professional negligence), my malpractice limits, I believe, are $1 million. Pursuant to our contract, insurance pays the first million, but I am responsible for the second million. Know what most plaintiff lawyers do when faced with this situation? They leave the doctor alone, even though they could lien the doctor’s house and garnish his wages. Let’s not forget that the ~reason~ insurance exists is to cover unsure losses, so that a mistake does not decimate the insured. Insurers spread the risk of a payout over millions of insureds. In essence, insurance companies are complaining about doing what they are supposed to when there is a loss--covering it. With a 14% decrease in medical malpractice lawsuits, and wins at trial less than 28% of the time, can you see why insurers are the ones who want to ‘roll the dice’ at trial, especially in catastrophic injury cases? If they know they must pay 20 or 30 million, is there an incentive for them to keep that money in their investments rather than to pay out quickly?

On to Pete, whose main point seems to misunderstand my position. I have never written that malpractice payout have no effect on insurance premiums. In fact, I quote from the article:

“The 2003 Weiss Report found that despite caps on economic damages in 19 states, "most insurers continued to increase premiums (for doctors) at a rapid pace, regardless of caps." The report found that insurers failed to pass along any savings to physicians in states with caps by refusing to lower their insurance premiums, and that ***caps only slowed the increase in the amount of damages insurers were required to pay out.*** (Weiss Report, 6/3/03.)”

So no, Pete, it is not my position that payouts have no effect on premiums (but on reviewing my choice of language, I guess your conclusion is not unreasonable), and it never has been. But in response to your ‘free market’ model, you should be aware that insurers move in and out of various segments of the insurance market all of the time. Like any reasonable person, when they think they can sell policies and make a profit, they do so. But you cannot look at the entire issue so simply. In a pure economic model, sure, all competitors compete on price. In fact, it violates Federal antitrust laws in most industries if the major players get together and fix an artificially high price. The problem with this analysis here is: the anti-trust laws DO NOT apply to the insurance industry. Insurance companies routinely share rate information and risk analyses. Anti-trust laws probably should apply, and if they did, you would be correct–you would not see skyrocketing premiums, you’d see pure free market competition. And we all know where prices go in a free market—-down. Voila. Insurance reform, not tort reform, is the answer.

Pete, your second post is similar to the first, so I will not re-tread covered ground. But you conclude your post with:

”If that child lives to be 100, he will have an income of $175,000 per year to pay for his special needs and living expenses. Is that kind of money really necessary for his condition? And what's to stop the parents from tapping into that sum to buy a boat and summer home on Lake Geneva?

In addition to asking you to see my response above as to why it is difficult for us to second-guess what fair compensation is until we posses of all of the facts, I guess I have questions of my own. First, what do we mean by brain damaged? Let’s assume we’re talking about profoundly mentally retarded, and not literally a vegetable, in a bed on life support, because if that's the case, we are talking about a hsorter lifespan but a much more expenseive yearly maintenance requirement (basically, 24-hour hospitalization). I’ll do you one better; let’s say he lives until he is 50, so that money comes out to $350,000.00 a year.

I guess we can assume that, for the rest of his parent’s lives, they will have to stay home with him, tying his shoes and reading him childhood bedtime stories, for the rest of their lives–not enjoying their lives, mind you, but either babysitting their son for the rest of their lives, instead of teaching him, watching him grow into a self-sufficient man, watching his joy at bringing a grandchild into the family, or hiring someone to do it for them. Do they deserve some money for having a life like that, unbidden, forced upon them? Some consolation?

He might need care around the clock, but you didn’t ask that, did you? Because $35 million is too much money period, right? If he has special medical needs, you can assume that he will need a $60-$75k/year nurse-caretaker for him. If not, you’ll need a special needs babysitter for the rest of his life. And what happens 30 years from now, or sooner, when Mom and Dad fall ill or die? 24-hour care, an accountant to manage his household, a housekeeper? Or a Special Needs facility, since he cannot take care of a home of his own? Know how much those cost–-either running a household or living in a decent medical care facility? Depending on the answer to these questions, my friend, you have spent your $350,000.000 per year, or close to it. But this is just where non-economic damages begin.

What if you could never leave your house alone? Couldn’t understand signs outside the house, even though you could maybe recognize some of the letters, and got lost and confused and scared, even as an adult? What if no one wanted to be your friend, and you never kissed a girl or made love to a woman? But what if you were ~just~ aware enough and just smart enough to understand that the possibilities you see on TV are possibilities for everyone, except you, to be a cop, a fireman, a lawyer, an artist,even a drifter, free on the weide open road. If this revelation hit you when you were young, perhaps your Mother would dry your tears. But would happen if the revelation hit you when you were a 40-year-old child, and a mean nurse who resents you is your only human contact, and you wake every morning wondering where your parents are, the people who were always sad, but were the only ones ever truly in love with you., until you slowly remember that they are gone and have been for years, and you are all alone. Because you have never had friends like the other kids. Never had a lover or a wife, or a child. How much is this worth? 50 years of loneliness, a vague understanding that you aren’t like everyone else, a life-sentence of existence rather than life, bought by the careless tip of a surgeon's scalpel? Does this have no value? Is $100,000.00 enough? Is $100 ~million~ enough? Can you so little understand humanity that you question that, while money is a blunt tool and poor substitute for a life ruined, it is all we can and ~must~ give to those who have been wrongfully robbed of that which we all take so much for granted?

Irfan Khawaja asks about what qualifications a doctor must have to be able to author a malpractice report, which must accompany a Complaint. The answer is: a licensed doctor in good standing, of the appropriate specialty, familiar with the medical issues presented. So it is perhaps a bit better that your postulated situation. Another way to answer that question is to say that a doctor can only author such a report if he has the necessary qualifications and credentials to to perform the same procedure on you. Malpractice is not a judgment call gone wrong, it is a clear error or deviation from the standard of care. If a doctor tells me that the performing surgeon made a bad judgment call, I dump the case because I know that I am likely investing poorly (my time and money), because the case will likely end badly pursuant to a Motion for Summary Judgment, or after an expensive but fruitless trial (less than 28% chance of winning).

Well, my self-imposed time limit is long gone, and so has my enthusiasm for further response (at least as of this sitting, and I promised myself that this would be a one-sitting affair). So there you have it. I will close with a few more tidbits I found while poking around the internet. Have at it.

Paid Medical Malpractice losses by insurers remain less than one percent (1%) of health care costs, and have remain so from 1985 through 2002. This means that the costs charged to patients for health care have remained stable in relation to the amounts paid by insurers to injureed patients. The ratio of the money coming in to the money being paid to injured patients is essentially flat. (http://www.insurance-reform.org/pr/AIRhealthcosts.pdf)

Contrary to what the insurance and medical lobbies have alleged, the years 2001 and
2002 saw no “explosion” in medical malpractice insurer payouts or costs to justify
sudden rate hikes. In fact, rather than exploding, inflation-adjusted payouts per doctor
dropped from 2001 to 2002. Payouts (in constant dollars) have been essentially been flat
since the mid-1980s. (http://www.insurance-reform.org/StableLosses2003F.pdf)

Medical malpractice insurance premiums rose much faster in 2002 than was
justified by insurance payouts. The 2002 hike is similar to the rate hikes of the past,
which occurred in the mid-1980s and mid-1970s and were not connected to actual
payouts. Rather, they reflect a weakened economy and losses experienced by the
insurance industry’s market investments and their perception of how much they can earn

Malpractice insurance premium rates in California rose 190% in the first 12 years after its enacted $250,000 noneconomic damages cap. (http://www.iltla.com/Medical%20Malpractice/Med_mal_facts.pdf)

Over the last 2 years, California medical malpractice insurers have sought to raise their rates by 50%, despite having some of the most restrictive damages caps in the country. (http://www.iltla.com/Medical%20Malpractice/Med_mal_facts.pdf)

The insurance industry is exempt from anti-trust laws, and, unlike other businesses, are allowed under Federal law to collude and set prices, including medical malpractice insurance premiums.

Rising awards, lower investment income, and cyclical patterns in the insurance market are all major factors in the rise in premiums. insurance. (http://www.iltla.com/Medical%20Malpractice/cbo_report_jan_04.pdf)

Post 19

Saturday, September 25, 2004 - 11:00amSanction this postReply

Wow.  I guess I’ll start at the beginning:


 1)      Another physician must review the case and agree that there is evidence of malpractice.

The procedure varies by state.  Indiana, for example, has a committee assigned to evaluate cases and determine merit.  These checks are absolutely necessary to limit frivolous suits. Otherwise, the incentive system would be such that a patient would have nothing to lose by attempting to sue.  The defendants, on the other hand, would need to invest time and legal fees regardless of merit.  In many states, even the most borderline of cases get through the initial screen.  While practicing, VP candidate John Edwards had been known to consult up to 40 or 50 physicians before finding one who would come to a conclusion he liked.  He usually chose the most clear-cut and financially promising cases, though.  (BTW, I’m not a Republican)


2)      No other group receives this “report first” procedural protection.

Already shown in a previous post to be incorrect


3)      Juries are presented with itemized calculations of current and future costs to the patient and should be allowed to determine the award if the physician is guilty.  A cap prevents them from using all of this data to make an accurate payout based on the patient’s predicted future costs.

I am troubled by how blatantly you attempt to mislead readers with this argument.  Anyone who would write an article such as yours, replete with documented sources and clearly a product of many hours of thought, would know that the debate revolves around “non-economic” damages.  You suggest that the jury might be handcuffed into giving less than is necessary for future expenses (such as medical costs and lost income) that are objectively calculated.  The caps, many of which are greater than the $250,000 you quote, are ONLY for damages above and beyond all predicted calculated expenses. 

As far as “non-economic” rewards go, defense attorneys have their hands tied as far as proposing a framework or perspective for jurors.  Interviews with several jurors involved in Illinois’ largest-ever non-economic damages payout (regarding a baby with kernicterus) showed them to be shocked and appalled that they rewrote the record books.  The attorneys were not allowed to present them with averages or examples of individual payouts for past cases or to provide any type of suggested formula for making calculations. 


4)        Doctors are not fleeing states in droves, despite increasingly frantic and unsupported claims from the American Medical Association, the insurance industry and their allies.

 I wasn’t able to find your references, but all of the information I’ve seen on this question has always revolved around #’s of licensed physicians in a state.  These data are of little use, however, because physicians who leave a state to practice elsewhere need only pay $100 to $200 a year to maintain their license in that state, even though they have left.  The OB/Gyn and Neurosurgeons that I know who left Illinois (admittedly anecdotal and less than 20) all kept their Illinois licenses.  This is the rule, not the exception. 

I haven’t seen any good data, yet, regarding alleged shortages.  Certain anecdotes that I have heard lead me to believe that, in some specialties, regional shortages are beginning to appear.  For example, there are, supposedly, no longer any board-certified neurosurgeons in the southern ¾ of the state of Illinois.  A huge majority of private hospitals in the city of Chicago no longer have a neurosurgeon on staff.  Yearly price for neurosurgical malpractice premiums in Chicago…$300,000 range, Milwaukee….$60,000 range.  All in all, this issue is difficult to look at objectively, particularly because the ramifications are still evolving.  I suspect you are wrong in dismissing it so quickly.


5)      something about cat food

already discussed on this forum


6)      There have been recent decreases in overall numbers of tort and personal injury payouts and filings. 

As previously discussed on this forum, medical malpractice accounts for about 15% of tort cases and has, actually, been rising.


I don’t have time right now to go further.  I’ll wait for the 2nd edition due out this weekend.


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