Why Medical Malpractice Is Off Limits, A WSJ Opinion article

A few thousand trial lawyers have a lock on Democrats, who refuse to consider any legal reform.

By PHILIP K. HOWARD

Eliminating defensive medicine could save upwards of $200 billion in health-care costs annually, according to estimates by the American Medical Association and others. The cure is a reliable medical malpractice system that patients, doctors and the general public can trust.

But this is the one reform Washington will not seriously consider. That's because the trial lawyers, among the largest contributors to the Democratic Party, thrive on the unreliable justice system we have now.

Almost all the other groups with a stake in health reform—including patient safety experts, physicians, the AARP, the Chamber of Commerce, schools of public health—support pilot projects such as special health courts that would move beyond today's hyper-adversarial malpractice lawsuit system to a court that would quickly and reliably distinguish between good and bad care. The support for some kind of reform reflects a growing awareness among these groups that managing health care sensibly, including containing costs, is almost impossible when doctors go through the day thinking about how to protect themselves from lawsuits.


The American public also favors legal overhaul. A recent Common Good/Committee for Economic Development poll found that 83% of Americans believe that "as part of any health care reform plan, Congress needs to change the medical malpractice system."

Congress now realizes it can't completely stonewall legal reform. But what has unfolded so far is a series of vague pronouncements and token proposals—all of which assiduously avoid any specific ideas that might offend the trial bar. Here are some examples:

• On July 31, Rep. Bart Gordon (D., Tenn.), a Blue Dog Democrat, introduced an amendment to the House health-care reform bill (H.R. 3200) to fund pilot projects for liability reform, including pilots for "voluntary alternative dispute resolution."

What happened? According to the online newsletter Inside Health Policy, "While Gordon's amendment originally had seven policies that states could implement in order to receive federal funding, the other five suggestions were crossed out . . . due to the agreement with the trial lawyers."

• On Aug. 25, at a town-hall meeting in Reston, Va., Howard Dean, former chair of the Democratic National Committee, was asked why there is nothing in the health-care proposals about liability reform. Mr. Dean replied: "The reason that tort reform is not in the bill is because the people who wrote it did not want to take on the trial lawyers. . . . And that is the plain and simple truth."

• On Sept. 9, President Obama made a commitment in a speech before Congress to fix the problem of defensive medicine. On Sept. 17, his secretary of Health and Human Services, Kathleen Sebelius, announced an initiative that will allow states to test a variety of programs to "put patient safety first and let doctors focus on practicing medicine." But in the initiative's statement of goals made no mention of defensive medicine, or of pilot projects such as special health courts. The funding for the initiative is a tiny $25 million. According to Katharine Seelye on the New York Times's Prescriptions blog, "the comparatively small budget seems commensurate with the administration's level of interest in the subject."

The upshot is simple: A few thousand trial lawyers are blocking reform that would benefit 300 million Americans. This is not just your normal special-interest politics. It's a scandal—it is as if international-trade policy was being crafted in order to get fees for customs agents.

Trial lawyers are agents, and their claims are only as valid as those they represent. They argue, of course, that they are champions of malpractice victims. As Anthony Tarricone, president of the trial lawyers association (called the American Association of Justice) put it: "Trial attorneys see first-hand the effects medical errors have on patients and their families. We should keep those injured people in mind as the debate moves forward." But under the current system, 54 cents of the malpractice dollar goes to lawyers and administrative costs, according to a 2006 study in the New England Journal of Medicine. And because the legal process is so expensive, most injured patients without large claims can't even get a lawyer. "It would be hard to design a more inefficient compensation system," says Michelle Mello, a professor of law and public health at Harvard, "or one which skewed incentives more away from candor and good practices."

Trial lawyers also suggest they alone are the bulwark against ineffective care, citing a 1999 study by the Institute of Medicine that "over 98,000 people are killed every year by preventable medical errors." But the same study found that distrust of the justice system contributes to these errors by chilling interaction between doctors and patients. Trials lawyers haven't reduced the errors. They've caused the fear.

An effective justice system must reliably distinguish between good care and bad care. But trial lawyers trade on the unreliability of justice. It doesn't matter much whether the doctor did anything wrong—a lawyer can always come up with a theory of what might have been done differently. What matters most is the extent of the tragedy and that a case holds potential for pulling on a jury's heartstrings.

Former Sen. John Edwards, for example, made a fortune bringing 16 cases against hospitals for babies born with cerebral palsy. Each of those tragic cases was worth millions in settlement. But according to a 2006 study at the National Institutes of Health, in nine out of 10 cases of cerebral palsy nothing done by a doctor could have caused the condition.

Unreliable justice is like pouring acid over the culture of health care. One in 10 obstetricians have stopped delivering babies, unable to pay malpractice premiums on the order of $1,000 per baby, according to the American College of Obstetricians and Gynecologists (ACOG). Some hospitals, including Methodist Hospital and Chestnut Hill Hospital in Philadelphia, have stopped delivering babies altogether; and the number of unnecessary caesarian sections have increased to the detriment of the health of mothers, according to the ACOG.

Trial lawyers scoff at the idea of special health courts. "First you have a court for doctors," a spokesperson for the trial lawyers, Linda Lipsen, recently said, "and then what? A court for plumbers?" But America has a long tradition of special courts for situations where expertise and consistency are important—bankruptcy courts, tax courts, workers compensation tribunals, vaccine liability tribunals, Social Security tribunals, and many more.

Trial lawyers often claim that any alternative to the current medical malpractice justice system, such as specialized health courts, will only make it more difficult for injured patients to seek justice. But that's why you start with a pilot project. If these courts are unfair they will be rejected. But if they succeed—that is, are fairer to patients and doctors—they could provide a solid foundation for rebuilding an effective, less costly health-care system than we have today.

Mr. Howard, a lawyer and author, is chairman of Common Good (www.commongood.org).

I do love how the trial lawyers claim it's all about the peeeeeple when the reality is that less than half of jury awards go to families and victims.

Further, and I know this as a fact, many cases that end up as awards for the plaintiff the doctor did nothing wrong.

Obama knows where his bread is buttered. I just wish all you cocksuckers would acknowledge his douchebaggery.

This is a straight up bullshit argument and here's why:

Okay, so the complaint is that people without large claims can't even get a lawyer. Why? Because of the cost (which the lawyer fronts, a fact conveniently omitted from the article). So what is the solution across the country? Let's cap large damage awards. That way NO ONE can get a lawyer if they are injured by medical negligence.

As far as the "fact" you cite that "many" cases that end up as awards for the plaintiff the doctor did nothing wrong, I'm not sure how you know this or what jurisdiction you are talking about, but in the 2 jurisdictions where I am licensed, 9 out of 10 verdicts in med-mal cases are for the defense.

And I know for a fact that in a reasonable number of those cases, the doctor DID do something wrong, because I used to practice in this area.

The only really sensible proposal cited by either side is a medical board that screens cases, but cannot stop a suit. The report of the board is admissible into evidence, and can be attacked, but is not binding as far as filing suit. Sounds like it has no teeth, right? Not so. If the suit is dismissed, the report can be used as a basis for sanctions against truly frivolous lawsuits (of which there are precious few in the med-mal arena due to the costs of bringing a claim -- lawyers who file frivolous med-mal cases find themselves bankrupt pretty fast). Damage caps, special courts, etc. are no more than cover for insurers.

And insurers are not interested in driving down medical costs (in one state I am aware of, the promise was "pass caps and we'll lower rates." They passed caps. The rates went up, not down). They are interested in allocation of risk. They will charge your wife out the ass for her malpractice coverage regardless of how much of their water you carry, and they'll take the profit brought by the "reforms" you are pushing to the bank. Doctors lose, patients lose, and the only people that win are insurance executives.

Get in bed with the devil........

This is a straight up bullshit argument and here's why:

Okay, so the complaint is that people without large claims can't even get a lawyer. Why? Because of the cost (which the lawyer fronts, a fact conveniently omitted from the article). So what is the solution across the country? Let's cap large damage awards. That way NO ONE can get a lawyer if they are injured by medical negligence.

As far as the "fact" you cite that "many" cases that end up as awards for the plaintiff the doctor did nothing wrong, I'm not sure how you know this or what jurisdiction you are talking about, but in the 2 jurisdictions where I am licensed, 9 out of 10 verdicts in med-mal cases are for the defense.

And I know for a fact that in a reasonable number of those cases, the doctor DID do something wrong, because I used to practice in this area.

The only really sensible proposal cited by either side is a medical board that screens cases, but cannot stop a suit. The report of the board is admissible into evidence, and can be attacked, but is not binding as far as filing suit. Sounds like it has no teeth, right? Not so. If the suit is dismissed, the report can be used as a basis for sanctions against truly frivolous lawsuits (of which there are precious few in the med-mal arena due to the costs of bringing a claim -- lawyers who file frivolous med-mal cases find themselves bankrupt pretty fast). Damage caps, special courts, etc. are no more than cover for insurers.

And insurers are not interested in driving down medical costs (in one state I am aware of, the promise was "pass caps and we'll lower rates." They passed caps. The rates went up, not down). They are interested in allocation of risk. They will charge your wife out the ass for her malpractice coverage regardless of how much of their water you carry, and they'll take the profit brought by the "reforms" you are pushing to the bank. Doctors lose, patients lose, and the only people that win are insurance executives.

Get in bed with the devil........

I was hoping you'd come in and present your bullshit. Thanks!!!

Ok, so let me get this straight, 9 out of 10 med-mal cases in your jurisdiction go to the defense, and you're telling me that this ISN'T a problem? How much money was wasted on those cases? What percentage actually make it to trial?

The cases I've reviewed were for M&M conferences my wife handled last year. The cases were already jury awards and were presented to us by the plaintiffs attorney and the hospital was required by the courts to host it for teaching purposes. The 3 examples I sat in on showed no negligence on the hospital or the doctors. There were accidents made, but negligence...no. That's not to say that negligence doesn't happen, but let's not kid ourselves, lawyers don't sell juries on the facts, they sell them on the tears. Even more reason for reform of the system.

Insurers are not making money on med-mal. Just ask St. Paul,when they wanted to pull out of the state of GA. The reality is that for the years you study on malpractice premiums vs payouts, you don't take into account the economic cycle. It's comical when lawyers point to insurers and say "they're eviler. Just look at how much money they make!

This is a straight up bullshit argument and here's why:

Okay, so the complaint is that people without large claims can't even get a lawyer. Why? Because of the cost (which the lawyer fronts, a fact conveniently omitted from the article). So what is the solution across the country? Let's cap large damage awards. That way NO ONE can get a lawyer if they are injured by medical negligence.

As far as the "fact" you cite that "many" cases that end up as awards for the plaintiff the doctor did nothing wrong, I'm not sure how you know this or what jurisdiction you are talking about, but in the 2 jurisdictions where I am licensed, 9 out of 10 verdicts in med-mal cases are for the defense.

And I know for a fact that in a reasonable number of those cases, the doctor DID do something wrong, because I used to practice in this area.

The only really sensible proposal cited by either side is a medical board that screens cases, but cannot stop a suit. The report of the board is admissible into evidence, and can be attacked, but is not binding as far as filing suit. Sounds like it has no teeth, right? Not so. If the suit is dismissed, the report can be used as a basis for sanctions against truly frivolous lawsuits (of which there are precious few in the med-mal arena due to the costs of bringing a claim -- lawyers who file frivolous med-mal cases find themselves bankrupt pretty fast). Damage caps, special courts, etc. are no more than cover for insurers.

And insurers are not interested in driving down medical costs (in one state I am aware of, the promise was "pass caps and we'll lower rates." They passed caps. The rates went up, not down). They are interested in allocation of risk. They will charge your wife out the ass for her malpractice coverage regardless of how much of their water you carry, and they'll take the profit brought by the "reforms" you are pushing to the bank. Doctors lose, patients lose, and the only people that win are insurance executives.

Get in bed with the devil........

I was hoping you'd come in and present your bullshit. Thanks!!!

Ok, so let me get this straight, 9 out of 10 med-mal cases in your jurisdiction go to the defense, and you're telling me that this ISN'T a problem? How much money was wasted on those cases? What percentage actually make it to trial?

The cases I've reviewed were for M&M conferences my wife handled last year. The cases were already jury awards and were presented to us by the plaintiffs attorney and the hospital was required by the courts to host it for teaching purposes. The 3 examples I sat in on showed no negligence on the hospital or the doctors. There were accidents made, but negligence...no. That's not to say that negligence doesn't happen, but let's not kid ourselves, lawyers don't sell juries on the facts, they sell them on the tears. Even more reason for reform of the system.

Insurers are not making money on med-mal. Just ask St. Paul,when they wanted to pull out of the state of GA. The reality is that for the years you study on malpractice premiums vs payouts, you don't take into account the economic cycle. It's comical when lawyers point to insurers and say "they're eviler. Just look at how much money they make!

You tell him! Somebody needs to put that uppity shyster in his place.

To answer your initial questions, you apparently equate a defense verdict with a frivolous case. That's not accurate. Just because a jury goes the other way does not mean the party that won was right, nor does it mean that they "did nothing wrong," nor does it mean that the case had no merit. Under that view, OJ is innocent. You believe that, right?

In the particular jurisdiction I mentioned, doctors ROUTINELY show up to court en masse in their lab coats to try to sway juries. They blitz the television with ads about "junk lawsuits" and "lawsuit abuse." They blackball doctors who testify for plaintiffs in med mal cases, cutting them off from referrals, hospital privileges, etc. And it's a small community, so it's not like, say, here where a doctor could still have a nice book of business even if he bucked the trend. So it's not like there's a plaintiff lawyer cabal out there picking on the poor innocent doctors who (you say) "did nothing wrong." Now, add to that the fact that there are some really crappy lawyers AND a handful of dishonest lawyers and you get 9 out of 10 verdicts being defense verdicts. The system is being worked, but it's being worked by both sides. You want to look at one side as evil and the other as pure. That's bullshit.

As for the laughable idea that insurers make no money on med mal, the threats to pull out of coverage for a particular state are designed to achieve a political end. And they usually do achieve that end. They get damage caps. But what they don't do is lower your rates as they promise to do. But don't throw me in that "insurers are evil because they have money" box. I have no problem with insurers. I REPRESENT insurers. I just recognize them for what they are, and they are in business for profit. There's nothing wrong with that, but I'm not going to listen to them say that "tort reform" (particularly when discussing damage caps) has ANYTHING to do with reducing medical costs or protecting doctors when the fact is that they merely want to make it easier to allocate risk and control costs. It's not that they have an illegitimate goal. It's that they are lying about why they want do do what they're doing. That's politics every bit as much as when a "trial lawyer" (whatever the hell that is) tells you that a medical board to screen med mal cases will ruin the jury system that makes this country great.

And with all that you still didn't address the point I made.

P.S., negligence is an accident. Just FYI. If it were done on purpose, it would be an intentional tort. Doesn't mean ALL accidents are negligence, but saying "it was an accident, ergo it was not negligence" is like saying "it was cloudy, ergo it wasn't raining."

To answer your initial questions, you apparently equate a defense verdict with a frivolous case. That's not accurate. Just because a jury goes the other way does not mean the party that won was right, nor does it mean that they "did nothing wrong," nor does it mean that the case had no merit. Under that view, OJ is innocent. You believe that, right?

In the particular jurisdiction I mentioned, doctors ROUTINELY show up to court en masse in their lab coats to try to sway juries. They blitz the television with ads about "junk lawsuits" and "lawsuit abuse." They blackball doctors who testify for plaintiffs in med mal cases, cutting them off from referrals, hospital privileges, etc. And it's a small community, so it's not like, say, here where a doctor could still have a nice book of business even if he bucked the trend. So it's not like there's a plaintiff lawyer cabal out there picking on the poor innocent doctors who (you say) "did nothing wrong." Now, add to that the fact that there are some really crappy lawyers AND a handful of dishonest lawyers and you get 9 out of 10 verdicts being defense verdicts. The system is being worked, but it's being worked by both sides. You want to look at one side as evil and the other as pure. That's bullshit.

As for the laughable idea that insurers make no money on med mal, the threats to pull out of coverage for a particular state are designed to achieve a political end. And they usually do achieve that end. They get damage caps. But what they don't do is lower your rates as they promise to do. But don't throw me in that "insurers are evil because they have money" box. I have no problem with insurers. I REPRESENT insurers. I just recognize them for what they are, and they are in business for profit. There's nothing wrong with that, but I'm not going to listen to them say that "tort reform" (particularly when discussing damage caps) has ANYTHING to do with reducing medical costs or protecting doctors when the fact is that they merely want to make it easier to allocate risk and control costs. It's not that they have an illegitimate goal. It's that they are lying about why they want do do what they're doing. That's politics every bit as much as when a "trial lawyer" (whatever the hell that is) tells you that a medical board to screen med mal cases will ruin the jury system that makes this country great.

And with all that you still didn't address the point I made.

P.S., negligence is an accident. Just FYI. If it were done on purpose, it would be an intentional tort. Doesn't mean ALL accidents are negligence, but saying "it was an accident, ergo it was not negligence" is like saying "it was cloudy, ergo it wasn't raining."

No, I know the difference between a frivolous case and a defense verdict. And 9 out of 10 cases going to the defense is still clearly a problem, particularly when lawyers and courts cost money to somebody [everybody].

The system forces doctors to blackball those that defy the trend. Do you honestly think this is any different in any other line of business? Those that speak out against the system are chastised for it. Let's not pretend doctors are evil because they are doing it. It CYA in a system built to destroy them. What do you expect.

Negligence is not just an accident. It goes beyond the scope of things that are reasonably possible/expected when a surgery occurs. A doctor nicks a vein while operating on a patient. The nicked vein is noticed and repaired, though it requires extra stay in the hospital and a longer recovery time. There was no negligence because it was a reasonable risk to the type of surgery performed. The patient sued the hospital for time lost from work and emotional damages caused by the longer rehab, and won.

I didn't say insurers "don't," I said that they haven't been, as in they haven't been recently. For someone that believes in market driven cost and profit controls, you sure are mocking the system with your "they keep all the money and don't pass the savings on" nonsense.

Lastly, take a look at the number of med-mal insurers out there and tell me it's a profitable business. St. Paul wanted to get out of GA in 2003 because they were losing their ass, and Oxendine flat out told them that if they dropped med-mal, they would have to drop P&C too.

This is a straight up bullshit argument and here's why:

Okay, so the complaint is that people without large claims can't even get a lawyer. Why? Because of the cost (which the lawyer fronts, a fact conveniently omitted from the article). So what is the solution across the country? Let's cap large damage awards. That way NO ONE can get a lawyer if they are injured by medical negligence.

As far as the "fact" you cite that "many" cases that end up as awards for the plaintiff the doctor did nothing wrong, I'm not sure how you know this or what jurisdiction you are talking about, but in the 2 jurisdictions where I am licensed, 9 out of 10 verdicts in med-mal cases are for the defense.

And I know for a fact that in a reasonable number of those cases, the doctor DID do something wrong, because I used to practice in this area.

The only really sensible proposal cited by either side is a medical board that screens cases, but cannot stop a suit. The report of the board is admissible into evidence, and can be attacked, but is not binding as far as filing suit. Sounds like it has no teeth, right? Not so. If the suit is dismissed, the report can be used as a basis for sanctions against truly frivolous lawsuits (of which there are precious few in the med-mal arena due to the costs of bringing a claim -- lawyers who file frivolous med-mal cases find themselves bankrupt pretty fast). Damage caps, special courts, etc. are no more than cover for insurers.

And insurers are not interested in driving down medical costs (in one state I am aware of, the promise was "pass caps and we'll lower rates." They passed caps. The rates went up, not down). They are interested in allocation of risk. They will charge your wife out the ass for her malpractice coverage regardless of how much of their water you carry, and they'll take the profit brought by the "reforms" you are pushing to the bank. Doctors lose, patients lose, and the only people that win are insurance executives.

Get in bed with the devil........

Well, as a trial lawyer, or "cocksucker", you can only imagine how thrilled I am to engage in a meaningful dialogue on this topic after being labeled in such a flattering manner.

This is a straight up bullshit argument and here's why:

Okay, so the complaint is that people without large claims can't even get a lawyer. Why? Because of the cost (which the lawyer fronts, a fact conveniently omitted from the article). So what is the solution across the country? Let's cap large damage awards. That way NO ONE can get a lawyer if they are injured by medical negligence.

As far as the "fact" you cite that "many" cases that end up as awards for the plaintiff the doctor did nothing wrong, I'm not sure how you know this or what jurisdiction you are talking about, but in the 2 jurisdictions where I am licensed, 9 out of 10 verdicts in med-mal cases are for the defense.

And I know for a fact that in a reasonable number of those cases, the doctor DID do something wrong, because I used to practice in this area.

The only really sensible proposal cited by either side is a medical board that screens cases, but cannot stop a suit. The report of the board is admissible into evidence, and can be attacked, but is not binding as far as filing suit. Sounds like it has no teeth, right? Not so. If the suit is dismissed, the report can be used as a basis for sanctions against truly frivolous lawsuits (of which there are precious few in the med-mal arena due to the costs of bringing a claim -- lawyers who file frivolous med-mal cases find themselves bankrupt pretty fast). Damage caps, special courts, etc. are no more than cover for insurers.

And insurers are not interested in driving down medical costs (in one state I am aware of, the promise was "pass caps and we'll lower rates." They passed caps. The rates went up, not down). They are interested in allocation of risk. They will charge your wife out the ass for her malpractice coverage regardless of how much of their water you carry, and they'll take the profit brought by the "reforms" you are pushing to the bank. Doctors lose, patients lose, and the only people that win are insurance executives.

Get in bed with the devil........

Well, as a trial lawyer, or "cocksucker", you can only imagine how thrilled I am to engage in a meaningful dialogue on this topic after being labeled in such a flattering manner.

I was more so speaking of all those that support Obama. I do remember you saying a good while ago that Obama believed in tort reform. Here's his chance, and he wipes his ass with it. Yeah, he's an oak alright.

Well, I know for a fact the tort system is not "designed to destroy" doctors, so it's a bit hard to argue with a strawman. You have a warped view of what the system does and why it exists. That leads you to silly conclusions like defending thuggish mafia style tactics that, if done by a labor union, you would surely decry.

No, negligence is not "just" an accident. But negligence IS always an accident.

The case you describe above should have been dismissed. Do you have other facts? What evidence did the plaintiff have? What was the timeframe during which the nicked vein was discovered? Was there some other failure of care after the nicked vein that resulted in negligence? As you tell the story above, I have a very hard time believing on that information alone a jury found for the plaintiff.

I'm not mocking anything. I'm speaking a fact.

But for shits and giggles, lets assume you're right that they make no profit. At the very least that proves that their promise that damage caps would lower insurance costs and therefore premiums was rank horseshit. Even if you're right, they're still selling a lie.

St. Paul was trying to get out of the med mal business in EVERY state. And a lot of the reasons insurers like St. Paul were losing their asses have to do with their shitty investment strategies and a lot less to do with the risk allocations inherent in med mal products. Med mal is risky for an insurer because the damages are typically high. They want awards capped because it allows them to allocate the risk better. It's not about right and wrong. It's an accounting tool. Again, I don't decry them that. I just don't buy the bullshit argument that they want to cut medical costs and improve the healthcare system. They could give half a shit about the healthcare system or medical costs except inasmuch as either affects their ability to allocate risk, set premiums and return a profit. Acknowledging that is not "mocking" them or trying to imply that they are evil. It is merely acknowledging a truth.

In a free market system such as you claim to advocate, insurers would allocate risk, and they would accept the results of that allocation and if it results in a loss, insurers who do a better job would step in and utilize the assets of the failing insurers. Much as should have happened in the auto industry. What you advocate, rather, is a system where a group of risk -- doctors -- are abitrarily shielded from the consequences of their negligence so insurance companies don't have to risk high damage judgments in cases with extraordinary damages. That's an easy way to fix the problem, but it's pretty fucking far from a "free" market. It is an artificially skewed market that allows one group of people to escape liability at the expense of their victims.

Question????

It's my understanding that IF this health care plan does pass, it will in essence accomplish that.

Doctors will in fact be immune from lawsuits and the government as the "provider" will also be immune.

Now if that is the case (and that wording is in the bill) it seems a whole bunch of lawyers will be looking for jobs.

Question????

It's my understanding that IF this health care plan does pass, it will in essence accomplish that.

Doctors will in fact be immune from lawsuits and the government as the "provider" will also be immune.

Now if that is the case (and that wording is in the bill) it seems a whole bunch of lawyers will be looking for jobs.

Not sure where you heard that, but the government is not the provider under any of the current proposed bills. There are some that include a so-called "public option," but that is to provide insurance, not care. This could theoretically change the laws on insurer liability for their errors and omissions, but most of that is dealt with through ERISA (speaking of ill-considered laws that shift liability) now.

Medical malpractice would only be altered if the bill(s) specifically referenced them.

And, FWIW, not many lawyers practice in the med-mal arena to begin with. It's expensive to fund the lawsuits, it's high risk/high reward and it is incredibly specialized. It is not something a lot of lawyers are qualified to do from a litigation standpoint (i.e., not many people are good enough lawyers to step into that kind of litigation in the first place, kind of like not many people can be a star quarterback but a lot more can be a good, solid safety). Add to that the specialized knowledge required in medicine and it's just not something a lot of lawyers are willing to get into.

I know that's not the perception being given, but it's a fact. There's 1 guy - that's 1 with an O-N-E - to whom I would refer medical malpractice cases in the Atlanta area. There are others who do these cases, but I'd wager he gets associated on the bulk of them, and if he doesn't want it, the referring lawyer doesn't either.

Well, I know for a fact the tort system is not "designed to destroy" doctors, so it's a bit hard to argue with a strawman. You have a warped view of what the system does and why it exists. That leads you to silly conclusions like defending thuggish mafia style tactics that, if done by a labor union, you would surely decry.

No, negligence is not "just" an accident. But negligence IS always an accident.

The case you describe above should have been dismissed. Do you have other facts? What evidence did the plaintiff have? What was the timeframe during which the nicked vein was discovered? Was there some other failure of care after the nicked vein that resulted in negligence? As you tell the story above, I have a very hard time believing on that information alone a jury found for the plaintiff.

I'm not mocking anything. I'm speaking a fact.

But for shits and giggles, lets assume you're right that they make no profit. At the very least that proves that their promise that damage caps would lower insurance costs and therefore premiums was rank horseshit. Even if you're right, they're still selling a lie.

St. Paul was trying to get out of the med mal business in EVERY state. And a lot of the reasons insurers like St. Paul were losing their asses have to do with their shitty investment strategies and a lot less to do with the risk allocations inherent in med mal products. Med mal is risky for an insurer because the damages are typically high. They want awards capped because it allows them to allocate the risk better. It's not about right and wrong. It's an accounting tool. Again, I don't decry them that. I just don't buy the bullshit argument that they want to cut medical costs and improve the healthcare system. They could give half a shit about the healthcare system or medical costs except inasmuch as either affects their ability to allocate risk, set premiums and return a profit. Acknowledging that is not "mocking" them or trying to imply that they are evil. It is merely acknowledging a truth.

In a free market system such as you claim to advocate, insurers would allocate risk, and they would accept the results of that allocation and if it results in a loss, insurers who do a better job would step in and utilize the assets of the failing insurers. Much as should have happened in the auto industry. What you advocate, rather, is a system where a group of risk -- doctors -- are abitrarily shielded from the consequences of their negligence so insurance companies don't have to risk high damage judgments in cases with extraordinary damages. That's an easy way to fix the problem, but it's pretty fucking far from a "free" market. It is an artificially skewed market that allows one group of people to escape liability at the expense of their victims.

The tort system isn't designed to destroy doctors? Really? In what other profession does a mistake lead down the path to financial ruin? The tort system is designed to siphon money out of deep pockets and distribute it into the hands of lawyers. As you've already pointed out, small tort cases are not profitable enough for lawyers to even handle, so they often get neglected. So generally only the large and profitable cases see thelight of day. Yep, we don't need tort reform...

There were numerous other details in the case I described. The doctor had been on shift for 20+ hours and the attending was not in the room when it occured. Both are typical for teaching hospitals and not against code, but the jury felt like they contributed to the incident and likely contributed to the length of time it took to repair the vein, which in turn meant the patient bled out more and really just started an avalanche of other issues. It was an unfortunate incident, no doubt.

Market forces dictate that lower losses generate consumer savings. If it doesn't occur, there is a outside factor coming into play. Perhaps it's collusion on the part of the insurance companies. Perhaps it's investment losses. There's a myriad of reason why rates don't go down in conjunction with lower loss ratios. Insurance companies exist to make4 a profit, just like lawyers exist to make a profit. And quite frankly, that's the fucking way it should be.

What I advocate is that med-mal cases be tried in a jury of their peers. Plain and simple, have doctors be on the jury. It's ludicrous for a lawyer to stand up there and present a bunch of evidence to people who have zero knowledge of cerebral palsy or its causes and have lawyer convince them that it occurred during birth at the hands of the doctor. Somebody has to be blamed for a retarded baby and God knows it can't be chalked up to bad luck. Particularly in civil cases, it's complete bullshit because all you need to provide is a preponderance of the evidence...such a weak burden of proof to financially ruin someone. Sorry, I know that's a general issue with the court system but it's one that I find to be complete BULLSHIT.

Just google "cerebral palsy birth" and see what pops up...only 50 bazillion websites dedicated to suing the shit out of doctors.

Small tort cases get neglected because plaintiffs lack financial resources to fund them, they are not economically feasible for contingent cases, and they therefore do not make sense to pursue. You don't spend $100,000 to try a case where maximum damages are in the $20,000 range.

That doesn't mean the $20,000 case doesn't result in a loss to someone. You seem to have precious little concern for that, though.

The tort system is not "designed to siphon money out of deep pockets and distribute it into the hands of lawyers." That you would continue such an outrageous and patently ridiculous assertion demonstrates your lack of critical thinking on the subject. It is -- and always has been -- designed to recompense victims for damages caused by tortfeasors. It is also enumerated in our Constitution, so I question your self-proclaimed status as a "conservative," since you apparently have no basis for wanting to "conserve" our Constitution.

Of course it was, and you have merely accepted the defense's theory of the case as fact. The jury didn't agree. So they must be evil or stupid and the system must be broken. That, sir, is horseshit.

I have lost several cases in my day and won several as well. It is the very rare case where I believe the judge or jury got it wrong just because they didn't buy my client's argument. The first thing you learn as a lawyer is that not everyone thinks like you do, and you can only control the presentation of facts, not the facts themselves.

One final question on that case: you say neither contributing factor was "against code." Was there any evidence that either action departed from the standard of care?

I don't have a problem with how it is. I agree that's how it should be. My issue is with the fact that one side is saying "pass this and we'll lower rates," and they're not lowering rates. They lied then, so why should I trust them now?

Do you trust tort lawyers who claim they will self-police to reduce the number of frivolous claims that are filed? I sure as hell don't.

It is just as much bullshit to allow ACOG -- a fraternal group of gynecologists -- to present evidence to the jury about the causes of cerebral palsy when they have no training or education to allow them to do so. I dealt with a pretty horrible cerebral palsy case once. The expert for the defense presented an ACOG report saying that ataxic CP is "never" caused by prenatal asphyxia. The report they cited cited in turn to another report which had that conclusion, but sourced it to 2 other articles, neither of which said what she said they said.

The pediatric neurologist from CHOP that the plaintiffs hired said not only is that statement patently untrue, but in fact the people (ACOG and the author of the article they cite to) who stated it are unqualified in any sense to give opinions outside the scope of their expertise. He said a neurologist is the proper person to give that opinion.

Now, I understand there are plaintiff doctors and defense doctors out there, but lets be honest about one thing: both sides whore up the evidence, and both sides do it on purpose. I won't get into the facts of the case I reference above -- suffice it to say evidence of falling below the standard of care was pretty strong. The doctor who attended the plaintiff wanted to defend the case saying essentially "yes, we did some stuff wrong, but look, here are some gynecologists who say that a neurologic condition isn't caused by what they do for a living."

It did not go to trial.

Small tort cases get neglected because plaintiffs lack financial resources to fund them, they are not economically feasible for contingent cases, and they therefore do not make sense to pursue. You don't spend $100,000 to try a case where maximum damages are in the $20,000 range.

That doesn't mean the $20,000 case doesn't result in a loss to someone. You seem to have precious little concern for that, though.

The tort system is not "designed to siphon money out of deep pockets and distribute it into the hands of lawyers." That you would continue such an outrageous and patently ridiculous assertion demonstrates your lack of critical thinking on the subject. It is -- and always has been -- designed to recompense victims for damages caused by tortfeasors. It is also enumerated in our Constitution, so I question your self-proclaimed status as a "conservative," since you apparently have no basis for wanting to "conserve" our Constitution.

Of course it was, and you have merely accepted the defense's theory of the case as fact. The jury didn't agree. So they must be evil or stupid and the system must be broken. That, sir, is horseshit.

I have lost several cases in my day and won several as well. It is the very rare case where I believe the judge or jury got it wrong just because they didn't buy my client's argument. The first thing you learn as a lawyer is that not everyone thinks like you do, and you can only control the presentation of facts, not the facts themselves.

One final question on that case: you say neither contributing factor was "against code." Was there any evidence that either action departed from the standard of care?

I don't have a problem with how it is. I agree that's how it should be. My issue is with the fact that one side is saying "pass this and we'll lower rates," and they're not lowering rates. They lied then, so why should I trust them now?

Do you trust tort lawyers who claim they will self-police to reduce the number of frivolous claims that are filed? I sure as hell don't.

It is just as much bullshit to allow ACOG -- a fraternal group of gynecologists -- to present evidence to the jury about the causes of cerebral palsy when they have no training or education to allow them to do so. I dealt with a pretty horrible cerebral palsy case once. The expert for the defense presented an ACOG report saying that ataxic CP is "never" caused by prenatal asphyxia. The report they cited cited in turn to another report which had that conclusion, but sourced it to 2 other articles, neither of which said what she said they said.

The pediatric neurologist from CHOP that the plaintiffs hired said not only is that statement patently untrue, but in fact the people (ACOG and the author of the article they cite to) who stated it are unqualified in any sense to give opinions outside the scope of their expertise. He said a neurologist is the proper person to give that opinion.

Now, I understand there are plaintiff doctors and defense doctors out there, but lets be honest about one thing: both sides whore up the evidence, and both sides do it on purpose. I won't get into the facts of the case I reference above -- suffice it to say evidence of falling below the standard of care was pretty strong. The doctor who attended the plaintiff wanted to defend the case saying essentially "yes, we did some stuff wrong, but look, here are some gynecologists who say that a neurologic condition isn't caused by what they do for a living."

It did not go to trial.

The tort system is ABSOLUTELY designed to siphon money from deep pockets (doctors). And the fact that less than half the award money actually makes it to the victims is proof of where that money goes. I suppose most of those massive class-action lawsuits arethere to help the victims as well. Yes, thank you tort for getting me a $10 check from Blockbuster. That sure showed them!!! If the tort system was really designed to protect our enumerated rights in the Constitution, it would provide public plaintiffs attorneys.

Please don't even try to lecture me on what was enumerated by our Constitution. If any of our founding fathers were here to witness the blatant exploitation that occurs from the legal community, they'd be appalled. The Constitution provided for tort and protected it. It didn't put the current multi-billion dollar industry in place.

The plaintiffs attorney presented the case. The defense wasn't even present. So I accepted the presentation she made. The was no breach of industry standard of care, though the hospital tightened its own protocols for when doctors can begin surgeries after long shift times.

You seem hell bent on believing all med-mal insurers want to do is allocate their risk. Why do youthink that is? It provides for more predictable results, which in turn providesfor less loss reserves, which in turn provides for more stability, which in turn lowers costs. But let's suppose you're right and that malpractice insurers are the real evil. Why is there no attempt by Obama and democrats to curb their abuse? Why is there no real discussion on how to reduce an industry that costs the health system $60 billion a year?

Please don't attempt to lecture me on critical thinking when you can't even address the issue of why Obama and the democrats won't allow tort reform to even be addressed.