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July 11, 2006

Ezra Omnimedia

I have a piece in Slate today about medical malpractice and the total inadequacy of tort reform. Check it out.

July 11, 2006 | Permalink


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Nicely done, Ezra. I have a feeling I'll be linking to this occasionally in the future.

Posted by: Neil the Ethical Werewolf | Jul 11, 2006 12:01:44 PM

A nicely consise summary of the evidence! It sounds like too many cases are being thrown out as frivolous, not that too many frivolous cases are brought to trial, as the Republicans want people to believe.

Frist, of all the Senators, should be familiar with the relevant data - and lets assume he stays up to date so he can do his videotape diagnosis - and therefore his attempts to legislate more controls on malpractice cases being allowed is just more Republican lies. Let me be more clear: Frist is a liar. Did I mention that Bill Frist doesn't tell the truth?

Maybe Frist is practicing willful lies so he can appear as a worthy follow-on to Bush the liar.

Posted by: JimPortlandOR | Jul 11, 2006 12:07:34 PM


You ought to find some way of getting in contact with Michael Moore concerning his upcoming movie Sicko.

Posted by: Petey | Jul 11, 2006 12:39:58 PM

Ezra, you seemed to have screwed up some emphasis somewhere, but the overall point stands. These points don't match with:

1,452 medical malpractice lawsuits. They found that more than 90 percent of the claims showed evidence of medical injury

Only 150 of the cases in which the researchers couldn't detect injury received even token compensation

Wouldn't that be roughly all of the cases that didn't show injury?

Posted by: dfinberg | Jul 11, 2006 2:07:21 PM

This conversations plays the discussion- even in your response- on Republican terms. You seem to be admitting that law suits is the basis for why our healthcare system is so high. Is that what you mean to argue? it seems implict that is what one can take from this. Which isn't true from what I have seen- the real costs are economies related to the unsured, catestrophic care, too many middle men, over priced drugs and too much bureacratic waste/inefficent allocation of resources. Isn't it true that without the suits, that almst all of the problems with health costs would still be there- didn't kerry say something like this representing 10 percent of cost or something like that?

Posted by: akaison | Jul 11, 2006 2:58:35 PM

Well done. You've undercut much of the legs they had to stand on.

So what of the claim that malpractice is the cause of insurance premiums rising? If not because of the actual cost of suits and rewards, then what?

Posted by: Adrock | Jul 11, 2006 5:41:40 PM

Lets take a closer look at the anesthesiology example that ezra cites.

You do know that per capita expenditures on anesthesia SKYROCKETED after their "safety initiative" correct?

The kind of changes that ezra is suggesting are nonsustainable and will bankrupt healthcare.

USA has about the same number of medical errors and medical negligecne as any other nation on earth. Forget about lawsuits, forget about safety initiatives. Fix the REAL PROBLEM, which is cost.

Bring us a socialized medical system. But lets not spend trillions of dollars chasing these "safety initiatives" because there's no way our system could support that kind of spending load.

Posted by: joe blow | Jul 11, 2006 6:06:39 PM

What many people miss about the Tort Reform movement is that they assume it's there because its proponents are concerned with limiting damage due to malpractice suits- when in fact, a large goal is to simply do away with them.

Malpractice awards are comprised of compensatory and punitive damages (actual medical/future damage costs + slap on the wrist). Already a hard cap should set off alarms- not all injuries are created equal.

So, what about a soft cap, based on compensatory damages? Well, the problem there is that in order to get that money, you need a lawyer. Unless you have a lawyer on retainer, that's 1/3 of your settlement going towards your attorney, working on a contingent basis. 2/3s of what you need to cover costs isn't going to cut it, really. If a sliding cap can't work out properly, then any hard cap would be woefully inadequate.

The last (though important) part of this is to be intentionally nearsighted about how the process works. Juries like victims. A lot. They tend to give larger awards (the ones you always hear about) to prove a point; after all, it's just money from an insurance company, right? There is almost invariably, however, a motion to reduce the damages which is, again, almost invariably, granted in one form or another, unless the practice was particularly egregious or the damage unconcionable. What you see from Tort Reforms proponents are the award damages, while the more reasoned studies use the final assessed damages (what people actually end up paying).

I just get the impression that people don't understand that the system isn't calculated to discourage poor people from making use of the system or to cut back costs for a few insurance companies' benefit- the way it is always proposed, it nearly destroys all incentive to bring a malpractice suit entirely.

So I suppose it's not so much Tort Reform as Tort Elimination.

Posted by: Fnor | Jul 11, 2006 11:33:35 PM


Thank you for the piece on malpractice reform.

I may have overlooked it, but there is part of the puzzle that I don't remember seeing: the potential role of a single payor system. Medical malpractice awards that I am aware increase in size most directly related to the past and future medical expense. A single payor system could hold the potential to remove all of this expense from the legal action because it would only be a bookkeeping entry from one government account to another government account. If it is not part of the recovery, then it is typically not subject to the attorney's fee. Further, the recovery of future medical expense has an element of fraud in it, because such monies, once in the injured persons hands,are free to be spent on anything and are not dedicated to future medical care. Jurors or uninterested persons can foresee that the monies are subject to being spent on luxury living and the future medical expenses default to medical assistance in any event. Eliminating the recovery of medical expense reduces the total monies paid in such cases and reduces the lucrativeness of the cases to the malpractice bar. So long as we have the insurance system and the need for each separate insurance interest to have subrogation rights determined, these costs will remain part of the dispute increasing the total awards, and greatly funding the malpractice lawyers.

A second point that is often omitted is the effect of increasing medical costs on the cost of malpractice. Medical costs themselves consistently rise faster than general inflation. The awards will reflect the increased costs of past and future medical care to alleviate the injury. Malpractice premiums must have some relation to these higher than average costs.

Posted by: gcnngham | Jul 13, 2006 7:04:33 PM

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