TheAllotrope Posted October 5, 2009 Report Share Posted October 5, 2009 (edited) In the whole health care reform debacle the AMA strongly disapproved of Obama's refusal to touch malpractice law, which doctors consider hugely problematic. But I got to thinking...how exactly would government write a law that would allow for prosecution of gross negligence/incompetence as a tort while keeping costs manageable, or should it address the issue at all? I'm not clear on the details of specific malpractice reform plans, but a lot of what I've heard involves directly controlling the maximum payout for such torts. While that certainly reduces the amount of money contested in any given trial, it bothers me quite a bit that we should think it proper to dictate to people who have been injured that they can be compensated only for $XX, and to tell lawyers that they cannot earn more than so much money despite any real trial costs, difficulty in collecting evidence/prosecuting, etc. So: what is an appropriate, consistent vision of malpractice reform, if any? Edit for clarity Edited October 5, 2009 by TheAllotrope Quote Link to comment Share on other sites More sharing options...
Black Wolf Posted October 6, 2009 Report Share Posted October 6, 2009 In the whole health care reform debacle the AMA strongly disapproved of Obama's refusal to touch malpractice law, which doctors consider hugely problematic. But I got to thinking...how exactly would government write a law that would allow for prosecution of gross negligence/incompetence as a tort while keeping costs manageable, or should it address the issue at all? I'm not clear on the details of specific malpractice reform plans, but a lot of what I've heard involves directly controlling the maximum payout for such torts. While that certainly reduces the amount of money contested in any given trial, it bothers me quite a bit that we should think it proper to dictate to people who have been injured that they can be compensated only for $XX, and to tell lawyers that they cannot earn more than so much money despite any real trial costs, difficulty in collecting evidence/prosecuting, etc. So: what is an appropriate, consistent vision of malpractice reform, if any? Edit for clarity I also would like to know more about the claim that malpractice reform is needed. Don't we already have 98% of malpractice patients being unlitigated? Quote Link to comment Share on other sites More sharing options...
Steve D'Ippolito Posted October 6, 2009 Report Share Posted October 6, 2009 Don't cap the amount of the award. After all a doctor being an idiot can *seriously* screw up a life, or end it. DO require the loser of a lawsuit to pay all legal costs for both sides. This would put an end to frivolous lawsuits brought just to push for a settlement. A doctor who knows he is in the right will be able to afford to fight the suit rather than settle, if he knows he will not owe his lawyer anything. Ambulance chaser lawyers will be reluctant to bring suits with no merit. Quote Link to comment Share on other sites More sharing options...
Black Wolf Posted October 6, 2009 Report Share Posted October 6, 2009 Don't cap the amount of the award. After all a doctor being an idiot can *seriously* screw up a life, or end it. I don't know about this one, really. What I would worry about is, instead of making the award extremely huge, make sure that the winner of the lawsuit actually gets to see most of the award. Granted, I'm all for making a negligent apathetic doctor pay up the ass for the rest of his life, but the award becomes only so effective. A doctor that can't pay is a doctor that can't pay. Quote Link to comment Share on other sites More sharing options...
SapereAude Posted October 6, 2009 Report Share Posted October 6, 2009 Don't cap the amount of the award. After all a doctor being an idiot can *seriously* screw up a life, or end it. A doctor who knows he is in the right will be able to afford to fight the suit rather than settle, if he knows he will not owe his lawyer anything. You aren't taking into consideration time lost in fighting frivolous lawsuits. These things can take up a good deal of a doctor's time. Surely that would need to be compensated as well in the case of frivolous lawsuits. Quote Link to comment Share on other sites More sharing options...
RussK Posted October 6, 2009 Report Share Posted October 6, 2009 (edited) I don't support tort reform that caps lawsuit payouts. Yet, I understand that many of these lawsuits are harming the medical field. I've thought about various solutions, and some listed here so far are interesting, but many times I just think that the system currently in place is close to as good as it can get. Edited October 6, 2009 by RussK Quote Link to comment Share on other sites More sharing options...
TheAllotrope Posted October 9, 2009 Author Report Share Posted October 9, 2009 I think the "loser pays" principle is one that ought to be applied to torts generally, nevermind malpractice suits. What I'm trying to address is more than just "what should be done with tort law?", though I do find that fascinating and would like a discussion on it. I'm trying to figure out exactly how specifically malpractice torts ought to be handled. Thus far all I can think of is loser pays (including opportunity cost). I had another idea which seems on the surface to be horribly inconsistent, and that's just prevent doctors from insuring against malpractice suits. Insurance is about risk spreading, and gross incompetence isn't a risk, it's just incompetence. The sticky issue is, is it appropriate to violate freedom of contract when the contract is causing great harm to others (in economic damage & increased health care costs)? Would it even be effective, or just marginalize a small group of doctors hit by "ambulance chasers"? Quote Link to comment Share on other sites More sharing options...
RussK Posted October 9, 2009 Report Share Posted October 9, 2009 Rebuff me if I'm wrong, because this is just an analysis and opinion, but isn't the reason that so many of these cases are settled out of court due to the heavy possibilities of the practitioner losing in court? Coincidentally, a few days ago, I was at the salon getting my hair cut and picked up an edition of Times, and I happened to turn to an article about medical malpractice laws, which reminded me of this thread. It had some good statistical information (pie charts, etc...) about the lawsuits. I could be wrong, this is just from vague memory, but I think it said something like 90% of all cases are settled out of court. That's a very wide margin, and to me it hints that the practitioners and insurance companies don't want to press the issue because they don't like their chances. I've got an educated guess about why they wouldn't like their chances, but I'm not going to elaborate on that right now. However, the important thing, as it concerns this thread, is, how much would requiring the loser to pay for all court expenses improve the odds of practitioners/insurers continuing on with the court process? I'm still trying to mull over the possibilities, but I don't think it would increase those odds significantly. Quote Link to comment Share on other sites More sharing options...
TheAllotrope Posted October 10, 2009 Author Report Share Posted October 10, 2009 (edited) In a court case there is the actual amount contested, plus court fees, plus legal fees. In any case, the amount awarded will be the amount contested (or not, if the plaintiff loses). But the plaintiff is still on the hook for court and legal fees. If a person has to spend $10 million to defend against a $20 million suit, he loses no matter what the outcome is. The price of rightfully defending himself from a false charge is exorbitant, and the price of not doing so is even worse. The loser pays principle makes it so the person who committed the wrong (a false accusation or a tort) has to bear the responsibility for it. It encourages a proper defense of the wrongfully accused because they can gather evidence regardless of cost, and a proper offense for those who have been wronged. Those who are rightfully accused should not bother to waste resources collecting bad evidence, because they'll have to pay for it. The same goes for the wrongfully accusing. This cost shifting mechanism puts the full cost of a court case on the side of the injustice, and encourages people first not to commit wrongs against others, and second not to over-litigate. A big problem with medicine is malpractice insurance though, because it puts the resources of the insurance company at stake instead of the resources of doctors. Lawyers can hunt down the "deep pockets" (insurance companies) via a few doctors, and since the insurance companies have socialized costs the net cost of the litigation can increase tremendously. The extent of this problem is debatable, and maybe we'd be better off focusing elsewhere. But to the extent it is a problem, the only solution I can see is to somehow put insurance out of reach of tort lawyers, either by limiting the award (which I think would be wholly inconsistent with a rational political philosophy) or by simply prohibiting doctors from getting insurance for their incompetence. Out of court settling is outside the scope of this issue. The purpose is to limit economic losses due to litigation and to reduce malpractice premiums, which are related. A settlement implies that the plaintiff was right and that formal arbitration is unnecessary. True, it could mean that someone simply didn't have the resources (money or time) to fight it effectively, but this is what the loser-pays principle attempts to take out of the equation. There is of course also the issue of how courts implement the cases. A "hanging jury" (ie, a categorically pro-plaintiff jury, not a "hung jury") would certainly increase malpractice costs. Open ended question: what standard/method is applied to arbitrate medical torts? I'm lost. Edited October 10, 2009 by TheAllotrope Quote Link to comment Share on other sites More sharing options...
Mikee Posted October 10, 2009 Report Share Posted October 10, 2009 There should not be a cap on compensatory damages. But there has to be a cap on punitive damages because it must be an objective assessment and currently it is not. Quote Link to comment Share on other sites More sharing options...
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