Tort reform - 2 sides of the story

[CosmicRocker]

I saw these columinsts in the Orlando Sentinel, side by side this morning:
both present a good point, thought you might want to read them :-)

Scott Maxwell

TAKING NAMES

September 6, 2009
The courtroom is one of the last places in America where David can take on Goliath.

Where a single man, wronged by powerful interests, can seek justice from a panel of his peers.

And where a woman who lost her child — and is worried that other women might lose theirs — can bypass the bureaucrats and turn directly to her fellow Americans for help.

Our legal system is the best in the world — created by our Founding Fathers, who believed that unfettered access to courts and reparation was so important that they placed it in the Bill of Rights.

Yet now, after more than 200 years, we have people trying to undo it.

All in the name of health care reform — even though the facts show it would do little to actually help the common man.

If only the facts mattered.

Instead, emotions and talking points prevail.

And the results are surreal — people screaming in town halls, begging to limit their own rights.

We hear from people who claim to revere this country's founding principles and are willing to fight till their dying breath to protect the Second Amendment or the First ... but who seem eager to abandon the Seventh.

And why? Because some talk-show host told them to? Because their chamber of commerce told them it might be good for business?

Certainly the proposals titillate Corporate America.

After all, virtually every proposal that's out there — from capping damages and making it tougher for poor people to file lawsuits to taking juries out of the equation altogether — means less accountability.

And so the special interests and their lackeys portray "tort reform" as some sort of magical elixir that will instantly drive costs way down.

Except it won't.

That's not me saying so. It's the Congressional Budget Office — the one run during the Bush administration under Republican House Speaker Dennis Hastert.

In 2005, after conducting an exhaustive study, the CBO reported that malpractice accounted for "less than 2 percent" of health care spending.

So would you be willing to chip away your own rights — not to mention the Bill of Rights — so that your monthly premiums would drop from $225 down to $220?

The folly of that logic was on spectacular display at a town hall in Missouri last month.

Democratic U.S. Sen. Claire McCaskill was facing a rowdy room. They were screaming at her — and for malpractice reform.

[CosmicRocker]

Finally, McCaskill told the crowd: "We did very, very aggressive tort reform, and there has been a dramatic drop-off in malpractice lawsuits in Missouri."

The room exploded in wild applause.

"Now, I'm wondering," she continued, "how many of you that are clapping saw your health care costs go down?"

Crickets chirped, and not a hand was raised.

No one had a talking point prepared for that one.

Many of the talking points aren't accurate anyway.

Personal injury trials aren't skyrocketing. Bush's Justice Department determined that the number of cases resolved in U.S. District courts fell by nearly 80 percent between 1985 and 2003. And very few of them reached seven figures.

In fact, when juries do hand out big verdicts, it's usually for a reason — because they saw a big problem.

Civil trials have been responsible for doing all kinds of things that government has not.

Big verdicts can stop pharmaceutical companies from marketing unsafe drugs, automobile manufacturers from selling cars with deadly design flaws, and toy companies from making playthings that will harm children.

When you hear about a big judgment, do you focus on the widow who received millions of dollars — or the fact that, because of that verdict, a product that might've made you a widow too will no longer be on the market?

This isn't big government shoving mandates or verdicts down your throat.

It is your friends, neighbors and fellow Americans serving their country as jurors.

I'm candid in saying I come by my appreciation of the law naturally. My father is a lawyer who has defended doctors at prestigious hospitals and represented wives who became widows after an operation went wrong. Both sides deserve representation.

Most doctors do good work. And the medical boards are much better than they used to be at self-policing.

But do you completely trust your family's health to internal checks and government bureaucrats? Before you answer, you should know that, just last month, Florida revealed that health officials completely dropped 49 discipline complaints of doctors because a of a backlog so big they couldn't meet the six-year statute of limitations.

Yes, we need to bring down the cost of health care — and malpractice insurance.

We need to listen to ideas from all sides to make it happen.

But "tort reform" not only flies in the face of what our Founding Fathers wanted, it is tantamount to slapping handcuffs on your own wrists.

Scott Maxwell can be reached at smaxwell@orlandosentinel.com.

[CosmicRocker]

Medical malpractice litigation is a broken and corrupt system.

It needs to be overhauled for reasons that go well beyond the cost it adds to health care.

Malpractice attorneys would have you believe they bring justice to the injured and improve medical care by policing the doctors and hospitals.

That is nonsense.

Malpractice litigation has not increased patient safety, nor does it have anything to do with the pursuit of justice.

It is an insider game controlled by the cadre of lawyers who specialize in it.

They are the gatekeepers. They decide who is worthy of justice and who is not. Their decisions are not based on the severity of the medical infraction but an analysis of their potential payouts.

A sympathetic plaintiff who suffers a bad outcome from a medical judgment call is better than an unsympathetic plaintiff who suffers from true negligence.

A baby born with lifetime disabilities is a gold mine of economic damages. That has turned obstetricians into targets, with an estimated 75 percent of them being sued at least once. High-risk specialists, like neurosurgeons and trauma surgeons, also are high on the list.

This is not to say malpractice lawyers are evil. They simply are business people seeking to maximize profits.

And they are not alone.

Malpractice defense attorneys rack up huge fees by dragging out cases. A typical malpractice claim can drag out from three to five years.

A cottage industry of "expert witnesses" has sprung up, their assignment of blame dependent on which side is paying them.

Malpractice insurers seem more likely to scream about a crisis and jack up rates when their investment portfolios take a hit.

Everybody is in on the action.

Plaintiffs are nothing more than widgets on this assembly line. Of all the money poured into malpractice litigation, they see less than half of it.

The Progressive Policy Institute, a liberal think tank, notes that "patients are twice victimized, first by the medical system that caused their injury and then by a legal system that turns the pursuit of justice into a lengthy and often futile ordeal. ... The malpractice system as it exists today not only fails to achieve the basic goals of a tort system — just compensation and effective deterrence — but also contributes to both rising health care costs and poor quality care."

Yes, malpractice litigation fosters more malpractice.

A 1999 report by the Institute of Medicine said that as many as 98,000 patients die every year in hospitals from mistakes. It noted that the problem isn't one of negligent individuals.

"More commonly, errors are caused by faulty systems, processes, and conditions that lead people to make mistakes or fail to prevent them," it says. "Blaming an individual does little to make the system safer and prevent someone else from committing the same error."

Yet blaming individuals is what the tort system is all about, a practice encouraged by joint and several liability. This means that someone with only a peripheral role in a case can end up paying most or all of the judgment. This encourages attorneys to cast their nets far and wide for deep pockets.

Making matters worse, settlements often are sealed so whatever lessons could be learned from them are lost.

The Institute of Medicine has called for mandatory reporting of all serious errors. They then would be analyzed and procedures implemented to save thousands of lives and billions of dollars.

But that will never happen when health workers fear that reporting mistakes could land them in a lawsuit.

"Only 5 percent of doctors and nurses say they are very comfortable talking about mistakes and near misses in the current legal environment," reports the Progressive Policy Institute.

There is a much better way. It involves setting up health courts, in which malpractice cases would be handled in administrative hearings presided over by judges with an expertise in the field.

The judges would hire neutral expert witnesses to evaluate cases. There would be a schedule of benefits designating economic and noneconomic damages. Cases wouldn't drag on for years. One plaintiff wouldn't get $2 million more for the same injury than another plaintiff who had a better lawyer and a more sympathetic jury.

Over time, these courts would establish "case law" for acceptable standards of care. This would rein in the practice of defensive medicine, which costs billions each year.

Information from the cases would be shared instead of hushed up. Lives would be saved as a result.

Patients would not need lawyers to have their cases reviewed, eliminating their role as gatekeepers. The Progressive Policy Institute suggests injured patients simply be allowed to file a claim form to a health court review board.

The problem with medical malpractice is that it has become a Democrat vs. Republican issue. Both sides fall back on the ideological arguments of their big-money benefactors, and nothing gets fixed.

Mike Thomas can be reached at 407-420-5525 or mthomas@orlandosentinel.com.