Scott,

You wrote: First, your cite to malpractice premium amounts comes from an AMA spokeman's speech, which does not cite where he gets his numbers from. So, heck, its double hearsay. Worse than my research, even!

Heresay evidence can be true or false. If you have evidence that the numbers are erroneous, then prove it. Here is another site which compares premiums in Los Angeles and Dade County, where Miami is: http://www.calphys.org/assets/applets/micra_savings_chart.pdf

The numbers in the two sources are very close.

I did not question the veracity of the premium data you gave, but assumed it was true and tried to interpret it rationally. If you believe I erred, then please explain how.

Second, if you read the entire articles you cite, there is some disturbing (for you) information in there--like the loss ratio in the med mal insurance industry was ~higher in the early 1990's~, which pretty much hurts your argument about a current crisis.

Wrong (disturbing for you). Look again. The graphs clearly show higher loss ratios in 2000-02 than 1991-93.

Third, insurers and the AMA make claims that the number of medical malpractice cases are skyrocketing. The 14.1% figure debunks this myth, so citing it serves a purpose. If you are just going to ignore my cited materials and cite double hearsay yourself, you will do nothing to clarify these issues, and will only further obfuscate them.

You again make assertions that are false and/or give no evidence. Also, looking at number of cases is very misleading, which you not surprisingly try to take full advantage of. The main statistic for an insurer setting premium levels is aggregate claims in dollars, or frequency times severity. Number of cases affects only the numerator of frequency. Also, like the Milliman article said, severity is the biggest problem

But I end with this: None of your positions make legislative meddling in the legal system acceptable, even if you personally can accept the idea of a completely arbitrary number to award to injured people. You position is full of contradictions. You like that the insurance industry is exempt from anti-trust, but lament the other state controls. You lament the 'arbitrary' damages awards of juries, but prefer a government-mandated ~arbitrary~ caps on those damages, to be imposed by a legislature who has no idea of particular harms in a particular case.

Are you trying to say the current system has no room for improvement? Since my previous post, I’ve looked at some web pages about MICRA, the medical practice reforms California enacted in 1975. Medical providers generally approve of the effects it has had. It doesn’t surprise me that trial lawyers are against MICRA-like legislation. I suggest readers interested in this issue do a Google search on MICRA and “malpractice”, read some of the hits, and come to their own conclusions about whether MICRA-like legislation is an improvement. It seems to have not limited awards of *economic damages* in the least. Again, caps are only about non-economic damages.

About “full of contradictions”, again you make unproven and even false allegations. I’d also appreciate your not assuming I’m in full agreement with the political ideas of what you regard as the prevailing mind of the insurance business. Yes, the insurance industry is exempt from anti-trust law because that is a federal govt matter, and regulation of the insurance business is a state govt matter. (That fits with Article X of the Bill of Rights.) Do you wish to impose anti-trust laws on the insurance industry? If so, I’d be very surprised to hear such a thing on this forum and I’d like to hear why.

I don’t prefer an arbitrary anything, but a govt’s court system as a practical matter needs rules about what people can do within it. That includes people on juries. There are many rules about what they can do or not do, including in deciding penalties and such. Caps on *non-economic* damages would merely be only one more such rule. Also, people serving on juries are temporarily *acting on behalf of govt*, so the idea that they should be allowed to decide *anything* they want re a defendant (not part of the govt) is in effect another form of arbitrary govt power.

As for legislated dollar caps on non-economic damages, I have no personal stake in the matter and the insurance industry is quite capable of adapting to caps or no caps as long as aggregate damage award amounts are fairly predictable and they don’t have their hands tied on pricing and policy provisions.

Why are you and your kind so afraid of the jury system? Because your company isn't making enough profit? So your insurance company pals want to get the government involved ~again~ to keep your risk management mistakes from knocking a player out of the industry?

Why the unwarranted personal attacks? I am not afraid of the jury system. I do not work for an insurance company and never did work for one that sold medical malpractice coverage. As for your remark about risk management mistakes, you give no evidence for it. I suspect you uncritically swallow the smear jobs and lies of those who want insurers persecuted by the govt, such as those who own the websites you have referred to.

I am not going to respond to the rest of your post, because it is repetitious, and I think I made my position and reasons for them pretty clear previously. You seem to be accusing me of personal dishonesty, and I do not think you have supported that argument, either.

Yes, I did repeat some, but not entirely in the rest. I repeated some because I thought it worthwhile to again expose your unfair demonizing of  some businessmen, the fallacies in your position and some of your arguments in support of it. The last includes misleading statistics and relying on misrepresentation by others. I have not accused you of personal dishonesty, but of what I just said. But I do accuse your fellow trial lawyers of dishonesty and using “junk math.”  I have provided strong support for that.

You have given your and trial lawyers’ side of the matter as if it was beyond question and a defense of insurers could not possibly have any merit.  Well, we sort of have a jury here comprised of our readers. I hope you will trust their decision to be a rational one when they decide against you on this matter.  :-)

As for your choosing to not respond to the rest of my post: Darn! I was looking forward to your reply to the Rand-like question I asked at the end of my last post. It seems your answer is Rand-like, too: “Blank out.”

Hmm, DeSalvo. One of the definitions I found for “salvo” in a dictionary was:

Something resembling a release or discharge of bombs or firearms, as: a. A sudden outburst, as of cheers or praise. b. A forceful verbal or written assault.

How fitting!

I am not replying to Scott’s last post, but I have done some more Google searching about the medical malpractice controversy and wish to report on it.

It’s very clear that medical providers are the leading advocates of legislating caps on non-economic damage awards, i.e. for “pain and suffering”, in medical malpractice cases. That’s common sense; they clearly benefit from lower insurance premiums. Some lawyers advocate caps, too. See for example American Tort Reform Association, with website: http://www.atra.org/show/7827  

Scott asserts that insurance company lobbying is the driving force for imposing non-economic caps - for which he supplies no good evidence – but he doesn’t demonize doctors or the lawyers that support tort reform. When I searched the Internet for evidence of such lobbying, it was confined to the pages of personal injury trial lawyers. This tells me insurers are an easy scapegoat or red herring for them in the battle against legislated caps (and other tort reforms) that would affect the incomes of personal injury trial lawyers. They demonize insurers to divert attention from themselves. These trial lawyer groups usually do not demonize doctors per se, only occasionally the AMA or HMOs.

Experience has shown that caps have worked in reducing and/or slowing the rate of growth of medical malpractice premiums and aggregate dollar claims against insurers that sell the coverage. Los Angeles and Miami were both high rate locations in 1975. California passed MICRA; Florida didn’t. Now Los Angeles offers affordable rates and medical malpractice insurance is a competitive market. In contrast Miami has the highest rates in the country and insurance availability is poor. That’s pretty good evidence. Yet trial lawyers claim that caps don’t work when they do their lobbying and spew their propaganda using “junk math.” Also, if caps (and other reforms) do not work, i.e. they are ineffective or irrelevant, then why should the trial lawyers be against them?  This indicates the big contradiction in their double-speak.

I grant Scott’s point that a simple dollar amount cap on non-economic damages is arbitrary. Maybe caps would better be some percentage of the economic damages. Maybe the percentage should differ for different kinds of medical treatment and/or degree of negligence of the medical practitioner. Such specifics are well beyond my expertise. In any case, percentages would obviate his complaint about leaving juries with no discretion.

Trial lawyers lobby like crazy against legislated tort reform and make huge contributions to political candidates to promote their cause. We don’t hear Scott complaining about this. He doesn’t even mention it. Maybe he doesn’t know about it, but I find that hard to believe. The trial lawyers’ cause is clearly exploiting the current tort system for their own self-enrichment. See for example:

http://www.triallawyersinc.com/html/part01.html

http://www.triallawyersinc.com/html/part06.html

http://www.cfif.org/htdocs/freedomline/current/in_our_opinion/john_edwards.htm

http://www.nationalreview.com/comment/copland200407080820.asp

http://www.objectivistcenter.org/navigator/articles/nav+ehudgins_doctors-shrug.asp

I recommend members of this forum read these sources, and then decide how accurate is Scott’s portrayal of the truth about medical malpractice lawsuits. He contends that tort reform affecting medical malpractice suits is wrong because it is more government intervention. That’s true with respect to juries. However, such reform would result in *massively less* government intervention in the lives of the general public. The defense rests.

If we do not support a system where personal responsibility is fostered by making negligent medical providers pay for the exact harm they caused, then the laws of economics mean that we are blunting the self-regulatory effect that losing a big lawsuit has; in effect, giving doctors and hospitals less of a reason to check, and double check, to make sure their treatment is of the highest quality.

Scott writes: The average high school graduate can understand any well-presented evidence well enough to responsibly sit on any jury in any trial and give a fair verdict.  . . . We entrust juries to interpret complicated contracts in lawsuits between businesses in which millions or billions of dollars hang in the balance.

The issue is about caps on non-economic damages. The jury’s right to award economic damages would remain fully intact.

[Are we] ready to give up a Constitutionally-mandated (Amendment VII) protection of freedom and fairness?

I have seen, and you have provided, no evidence of lobbying to repeal Amendment VII. If you can’t produce the evidence, then this is irrelevant.

We have Appeals Courts who can review any decision of a jury and reverse it if it is excessive or incorrect--the word of the jury is hardly the last word.

If appeals courts knock down awards for non-economic damages that juries award, isn’t that evidence of jury errors or extravagance?

But how likely is that appeals courts will knock down awards when courts have judges hand-picked and financially supported by trial lawyers, as in Trial Lawyers, Inc.?

http://www.ilcampaign.org/press/news/judicial/articles/2004/2004-7-12Courtelection.html

http://www.atra.org/

And these are only “the tip of the iceberg.”

Insurance companies and doctors are lobbying at the State and Federal level to substitute the blanket judgment of a legislator for that of a chosen (and accepted by ALL parties to suit) jury.

Trial lawyers lobby legislators and make huge campaign contributions to political candidates to support their side of the controversy.

If we do not have a system that compensates people for what they have really lost, you risk a reversion to the rule of man, not of law.

“Really lost” is fairly ascertainable for economic damages. It’s arbitrary for non-economic ones. If X has lost, that does not automatically mean some Y is responsible for compensating for X’s loss. Rule by men versus rule by law is hardly a black-and-white issue here. Men write and apply the laws; they pick judges who will interpret the law.

If we do not support a system where personal responsibility is fostered by making negligent medical providers pay for the exact harm they caused, then the laws of economics mean that we are blunting the self-regulatory effect that losing a big lawsuit has; in effect, giving doctors and hospitals less of a reason to check, and double check, to make sure their treatment is of the highest quality.

In my view we don’t have that now. Medical practitioners as a rule buy insurance. An effect is that the many practitioners who are not guilty of malpractice pay for the few ones who are guilty. Also, at least in some cases, with “victim-hood” and “junk science” having a role, they pay when the alleged negligence is absent or very questionable.

Doctors say much of this checking (defensive medicine) is unnecessary, costly, we all pay for it, and the money could be better spent on other medical care. They say the cost of medical malpractice insurance affects access to healthcare and adversely impacts the quality of that care. Hospitals, nursing homes and other healthcare facilities are being forced to close or reduce the range of services they can offer to the communities they serve.

Where is your proof that big lawsuits raise quality? Doctors maintain the opposite – they lower quality because “doctors shrug.” They leave or don’t enter high-risk specialties and go where they can get lower malpractice insurance premiums. See, for example:

http://www.fightingdocs.com/information_lincolnInstitute.htm   It’s simple economics, although the decision is likely based on gross income minus malpractice insurance cost.

(Pennsylvania doesn’t have caps, a state-run assigned risk pool, and Pennsylvania’s Supreme Court ruled that limiting attorney contingency fees recoverable in medical malpractice actions is unconstitutional.) It seems you consider only the *intended* consequences of lawsuits and not the unintended ones.

Maybe doctors could do more to weed their ranks of the guilty, at least repeat offenders not convicted on “junk science”. I know nothing about the factst. Have lawsuits contributed to weeding them?

Isn't this really what a monied interest preventing a fair hearing based on the facts is all about?

In part, yes, and one of those moneyed interests is Trial Lawyers, Inc.

That's it, pretty simple. If you do not like the jury system, then why not do away with any measure of damages altogether, and we'll just give everyone injured by a doctor $5,000.00, even if they were crippled or killed, because this will protect doctors and insurance companies more effectively. After all, that should be the Justice System's main concern, right? Protecting private industry and wealthy doctors from the consequences of their mistakes? Protecting them against those rotten blue-collar people who went and died after surgery? How inconsiderate.

This is absurd and sounds like demagoguery to support the special interests of Trial Lawyers, Inc. No one is advocating such a thing. The issue is non-economic damages.

But be warned, if you choose the rule of man over the rule of law, be prepared for some people to take the law into their own hands.

Sure, like Trial Lawyers, Inc.

In reply to Pete, you wrote:

Then the pendulum had swung so far in favor of plaintiff's lawyers that insurance companies ~were~ giving away more money than was deserved, based on unscrupulous presentation by the plaintiff lawyers

Thanks for once admitting that insurers have been victims with plaintiff lawyers the demons.

If we are talking about a simple leg fracture with closed reduction, the medical bills may only be $5,000, but for blue-collar laborers, there will almost certainly be lost time from work for between 4 and 8 weeks. Insurance companies do not want to pay lost time.

Is this a realistic malpractice case? Why would a non-economic cap of $0.5-$1 million be relevant here?  How about justifying some multi-million awards for “pain and suffering” that have been made and are a big part of the rapid rise in average amount of damage awards?

 
I’ve read several places that lost wages are economic damages, none saying they are non-economic damages. What about income from other sources like sick pay or workmen’s comp? In California a jury is required to hear about such collateral source payments. This allows defendants to argue that damages be limited to what the plaintiff actually paid out, if e.g. the plaintiff is covered by  health insurance. This reduces the severity of claims, helping to keep down the cost of health care for all. Notice of collateral source payments is typically included with tort reform that puts caps on non-economic damages. Hmm, I wonder why this is a part of it. Have trial lawyers conspired to make it inadmissible evidence? And why should insurance companies pay for lost wages if the plaintiff has other replacement income?

I close with a question. Would you defend the right of an insurer to sell medical malpractice coverage with limits on payments for *non-economic* damages? Ignore the side issues of whether or not state governments would permit it and the difficulty the insurer would have in selling such coverage to prospective buyers. This is a question of principle. I am confident the personal injury trial lawyers of Trial Lawyers, Inc. would try to take the law into their own hands and outlaw such provisions.

1) Cite me one case or one official source for your ridiculous statement that Edwards consulted with 40 or 50 doctors on ANY case. Hell, I'd even settle for one case where he consulted with 4 or 5 of a particular specialty before he got the desired opinion . . . My guess is you cannot cite a single credible source. You have some gall making a claim like this and then criticizing ~my~ cited sources.

          In the 1/31/04 edition of The New York Times, two (non-conservative) faculty members of the Columbia University Graduate School of Journalism Adam Liptak, J.D. and Michael Moss (author of a series re: how poorly physicians read mammograms) wrote an article re: Edwards’ trial work: 

          “In building his career, Mr. Edwards…sifted through several dozen expert witnesses to find one who would attest to his claims”…“In 1985 he handled his first cerebral palsy case, for Jennifer Campbell…whose voice he recreated at trial. In his book ''Four Trials,'' Mr. Edwards described the case as an uphill battle. The doctor was esteemed and worked at a prestigious teaching hospital. Mr. Edwards's associate interviewed 41 obstetricians before finding one local doctor who would make a good witness.” 

          I remembered reading this article in January and, admittedly, don’t know where else to look for corroborative information.  I did, however, look up several other articles by these authors and saw no evidence of bias or other reasons to discredit their information.

2) As I clarified, no other group receives this sort of blanket protection across the board. Show me one that does.

          I was referring to your initial claim, which was incorrect, not to your clarification.  Nit-picking aside, your argument is clearly valid – that the procedure involved in suing one’s physician differs from other types of litigation.  I, personally, feel that uniqueness of the physician-patient relationship & medical setting, and the complexity of medical science warrant such procedural differences.   “Standard of care” is not necessarily a black & white issue.  This is only my opinion and is not an objective argument.

3) Read the discussion above about noneconomic damages. No one is misleading anyone, and I resent your suggestion that I am being misleading. And BTW, dont you think I, as a plaintiff's attorney, would LOVE to give juries information about how much other cases of a similar type got at trial? Listen,…

          In your original article you present the steps in which the prosecution tallys medical bills, lost future wages, and other future care-related expenses. Then you discuss the determination of guilt, followed by…  “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”…. “Caps only affect the cases in which a jury of twelve people heard all the facts of the case and decided the injury was so severe and life-altering and the misconduct so blatant that a patient injured by the errors of a health care provider should receive more than $250,000.”

          I felt that, despite all of the detail provided, the true nature of the caps being debated was not at all clear.  You did not once mention non-economic caps by name and did not describe them conceptually.  If one did not know anything about the debate at hand, your article would leave him/her with the impression that the total settlement would be capped.  Nobody argues against providing the economic damages you describe in detail, and I do not believe that any state caps economic damages.  Later on you go as far as to say, “The 2003 Weiss Report found that despite caps on economic damages in 19 states…”  The report, in reality, discusses non-economic damages.  There is no doubt that your article was misleading on this crucial point.  Whether or not it was intentional is not provable. 

          Regarding the second portion of #3, I don’t know which side would be favored were it permissible to present to the jury information regarding legal precedent and suggestions of methods to determine non-economic damages.  Your point that it may favor the prosecution seems very reasonable.  I offered that detail because a medical malpractice defense attorney expressed to me his frustration with the current gags on non-economic damage-related information.

4) Again, you slam my conclusions and method of arriving at them, but fail to refute mine, you ignore the cited GAO report which addresses this ~precise~ issue, and then come up with malpractice premium figures out of thin air. Who is being misleading here?

          I did not “slam your conclusions” on this issue, mislead, or concoct figures “out of thin air.”  I was clear in stating that certain anecdotal evidence leads me to hold off in my acceptance of your assertions/evidence re: physicians not actually leaving and causing regional shortages.  I also qualified that I did not personally see your cited articles.  And many statistics on this matter do, in fact, count a state’s ~licensed~ physicians as ~practicing~ physicians.  I don’t expect my anecdotal evidence (or testament to the neurosurgeon’s credibility) to change your mind, so here are data regarding average neurosurgery premiums as stated in the Chicago Tribune (3/12/2004): Illinois $228,396, Wisconsin $46,803, Indiana $70,472, Missouri $129,519, California $74,660.  F.Y.I., WI, IN, CA, and MO all have non-economic damage caps, although Missouri’s $565,000 cap currently has a loophole in which the cap may be applied more than one time per patient.  More premium stats from ISMIE (malpractice insurance provider):

OB/Gyn- Illinois 2000: $78,880; 2003: $139,696 (+77.1%)

OB-GYN- Wisconsin: 2000: $27,466; 2003: $30,304 (+10.3%)

Gen. Surgery- Illinois 2000: $52,364; 2003: $92,576 (+76.8%)

Gen. Surgery- Wisconsin 2000: $16,661; 2003: $19,641(+17.9%)

Int. Medicine- Illinois 2000: $19,604; 2003: $35,756 (+82.4%)

Int. Medicine- Wisconsin 2000: $5,993; 2003: $5,612 (-6.4%)

          Clearly, there have been very significant changes in Illinois malpractice premiums in the past 3 yrs.  The ramifications are still evolving, and there is certainly no evidence to suggest that existing regional shortages won’t exacerbate in the near future.  There are already areas in southern Illinois lacking 24 hour neurosurgical coverage.

5) Malpractice lawsuits overall are not as costly as physicians and insurance companies would have you believe.

          Perhaps not… I assume that you are referring to the <2% of total health care expenditures figure you quoted.  I agree that the overall healthcare savings to the country would probably not be as high as some insurance companies and physicians would have you believe.  However, I think that the “defensive medicine” argument is valid to a point, particularly with respect to the overuse of imaging and diagnostic studies.  I think that this is especially the case when the decision does not also include a financial incentive for the physician, one way or the other.  Behavior, unfortunately, may change less when such incentives do exist.  I would respond to your point, however, by saying that if one chooses to argue that the risk of litigation significantly influences physician behavior (as you do), he/she should also admit that the potential overall savings to the health care system would be, indeed, greater than the 2% figure.

6) Again, try reading the article.  Malpractice cases are down 14.1%.  That means in 2002, there were 14.1% FEWER filings in med mal than in 1992.  This borders on willful misrepresentation and evasion of the basics.  How is anyone supposed to take you seriously?

          The first article did not contain such a figure.  Okay, 14.1% fewer filings in 2002 than 1992.  The 70.4% increase in the median reward is a more telling statistic.  And as previously mentioned, the mean would be even more telling.  The Weiss report also uses the median rather than the mean. 

Here’s the link to the CBO article (http://www.cbo.gov/showdoc.cfm?index=4968&sequence=0).  Interesting points therein:

*“Evidence from the states indicates that premiums for malpractice insurance are lower when tort liability is restricted than they would be otherwise.”

*“A 2003 study that examined state data from 1993 to 2002 found that two restrictions--a cap on noneconomic damages and a ban on punitive damages--would together reduce premiums by more than one-third (all other things being equal).”

*“Payments of claims are the most significant costs that malpractice insurers face, accounting for about two-thirds of their total costs. The average payment for a malpractice claim has risen fairly steadily since 1986, from about $95,000 in that year to $320,000 in 2002. That increase represents an annual growth rate of nearly 8 percent--more than twice the general rate of inflation.”

*“malpractice insurers who buy reinsurance to protect themselves from large losses have seen that part of their underwriting costs rise significantly over the past decade. (Those increases are not related solely to medical malpractice but reflect a general tightening of the reinsurance market in the wake of such catastrophic events as Hurricane Andrew in 1992, the Northridge earthquake in 1994, and the terrorist attacks of September 11, 2001.)”

 


(Edited by andrew barkmeier on 10/14, 5:39am)

(Edited by andrew barkmeier on 10/14, 3:18pm)