Posted on 01/30/2003 10:53:05 AM PST by not a kook
For the past 25 years, we have heard the steady drumbeat of doctors and insurers for "tort reform", that panacea for all that ills our healthcare system. We are told again and again about skyrocketing malpractice insurance rates, and how the greedy plaintiffs pay the greedy lawyers 40% of the recovery in order to soak the poor pitiful doctors.
Before we go about killing the right of the people to have juries listen to and assess their real damages, and before we violate the ancient principle of separation of powers (all on behalf of profiteers in 2 industries), I'll posit the following:
1. Malpractice claims overwhelmingly involve only 2% of the doctors - the same doctors that the profession won't police.
2. A claimant can't even bring a claim unless a doctor has rendered an opinion that there was malpractice.
3 That lawyer on the contingency spends many thousands of dollars out of his own pocket before seeing dollar one - frequently, only after appeals have been exhausted. The defense lawyer, on the other hand, has been paid handsomely from moment one. And if the plaintiff loses, not only does the lawyer get paid nothing, he's much poorer out of pocket.
4. American courts don't award legal fees to the winner in negligence cases - so that plaintiff who wins nothing but compensatory damages loses a sizable amount out of pocket in the long run only to get partially reimbursed.
5. There aren't many Americans who would willingly take only $250,000 in pain and suffering damages to give up the use of their limbs, or their sexual organs, or their sight or their hearing.
Given that the medical and insurance industry have lots of folks in their pocket, and this bill will be signed, I'll suggest the following amendments:
1. Malpractice defense lawyers should be limited to legal fees of no more than $100 per hour, with no bill padding or reimbursement of travel or other litigation expenses.
2. There shall be a blue ribbon committee of medical malpractice victims (or if dead, their families) to assess the pay of doctors, their office personnel, hospital administrators and insurance company executives, in order to determine appropriate caps for each level of service, and no salary shall exceed $250,000 (including perks, golf outings, vehicles, club memberships, etc.).
3. Since insurance companies in such a desperate straight, oversight of corporate expenses in the areas of bonuses, parties, gifts to the arts, corporate retreats, company gyms, exercise plans may be necessary.
I think these moderate steps might go a long way toward actually lowering malpractice premiums (which is something new - because it hasn't happened to any huge extent in any state with caps).
1. Malpractice claims overwhelmingly involve only 2% of the doctors - the same doctors that the profession won't police.
That's quite the generalization. I'd like to see your supporting evidence for the claim. Many, if not most, "bad" doctors are disciplined by their licensing boards.
2. A claimant can't even bring a claim unless a doctor has rendered an opinion that there was malpractice.
Depends on the particular state's laws.
3 That lawyer on the contingency spends many thousands of dollars out of his own pocket before seeing dollar one - frequently, only after appeals have been exhausted. The defense lawyer, on the other hand, has been paid handsomely from moment one. And if the plaintiff loses, not only does the lawyer get paid nothing, he's much poorer out of pocket.
Plaintiffs' lawyers frequently charge their clients for expenses, above and beyond their contingency cut. They're paid pretty darned "handsomely," too.
4. American courts don't award legal fees to the winner in negligence cases - so that plaintiff who wins nothing but compensatory damages loses a sizable amount out of pocket in the long run only to get partially reimbursed.
Again, depends on the particular laws of the state.
5. There aren't many Americans who would willingly take only $250,000 in pain and suffering damages to give up the use of their limbs, or their sexual organs, or their sight or their hearing.
Oh, please. They're already being compensated for their actual loss. "Pain and suffering" is completely subjective and speculative.
FYI, I used to practice law with a personal injury firm, and I used to be a member of ATLA. The whole personal injury industry disgusts me, because I've seen how it really operates.
There are three main culprits.
1) Ambulance chasing lawyers who take B.S cases
2) Doctors who are butchers at best (2% sounds about right)
3) The Health Care Quality Improvement Act which was basically written by that communist weasel, Waxman. Basically, it empowers physicians to police their own through confidential peer review. Like any other liberal idea it sounds great in theory but is a disaster when put into practice. Theoritically, it allows a board of physicians to discuss problem cases internally and confidentially so that they can produce better results from their medical staff. If they uncover a pattern of bad results they rescind the physicians rivileges and report him to a federal data bank. The problem is however, that local doctors in rural america (the ol' boys club)use this to keep out new competition and to cover up for their buddies.
I would like to point out that the McDonalds coffee case is the exception and not the rule. Those cases tend to get sensationalized. Believe me, you have to pry money out of an insurance defense lawyers hands. I have never met a plaintiff who made so much money that they were glad they got hurt.
I hate to disagree with GW, but the solution is not in putting a cap on med mal cases. The real solution is to eliminate the government from the health field alltogether and let Adam Smith's invisible hand cure everything. Unfortunately, that won't happen.
I'm open to suggestions, but Lawsuit Lotto is not a good thing when everybody is playing it.
Check.
In the minds of the practitioners of big medicine, its easier to foist the costs of the big mistakes onto the victims.
Or do you really believe that docs do what they do out of selflessness and altuism?
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