TorteDeForm

Justinian Lane

American Progress on medical malpractice "reform"

Can anyone refute the 2% figure cited with actual numbers, and not by resorting to the defensive medicine/insurance fraud bogeyman?

Myth: Medical malpractice lawsuits are little more than predatory lawyers destroying honest doctors; caps should be set on the amount awarded to accusers.

Truth: Although the malpractice system is deeply flawed, setting caps deflects attention from patient safety and would likely not reduce frivolous lawsuits or costly premiums.

Medical malpractice liability is in need of reform, but claims of a nationwide crisis are overblown. Malpractice claims and insurance premiums vary by specialty and geographic area—doctors in obstetrics or surgery tend to pay higher premiums, for example. What increases occur in malpractice premiums can be linked primarily to a sluggish economy. In fact, malpractice costs represent less than 2 percent of total health care spending. There is little correlation between malpractice claim increases and premium increases. (Emphasis added.)

Enacting caps on awards threatens individual rights to compensation for harm resulting from preventable medical error, mostly because so-called frivolous lawsuits represent only a small portion of claims and awards by juries. Focusing on tort reform deflects attention from patient safety in a system where victims are not fairly compensated and errors are not properly prevented. The solution to rising costs should instead consist of more emphasis on evidence-based medicine, independent screening, immediate disclosure of errors, and even a no-fault system of compensation.

Source: Six Conservative Myths About Health Care

Justinian Lane: Author Bio | Other Posts
Posted at 11:18 AM, Jul 22, 2008 in Medical Malpractice
Permalink | Email to Friend


Comments

Saying "Can anyone refute the 2% figure cited without resorting to the defensive medicine?" is like saying "Can anyone refute that 2+2 = 5 without resorting to the use of the number four?" The reason the 2% figure is wrong because it fails to consider the costs of defensive medicine and the reduced number of doctors. Study after study demonstrates that tort reform increases the availability of medical insurance to the uninsured by reducing costs.

Posted by: Ted | July 22, 2008 12:01 PM

So then, no, you can't refute it without resorting to the defensive medicine/insurance fraud bogeyman.

On the one hand, you've got reputable studies saying the cost of malpractice is between 1 and 2%. On the other hand, you've got the notion that widespread insurance fraud should be attributed to the malpractice system... but no one knows just how widespread or how costly the insurance fraud is. Or are there studies that purport to put a real number on the cost of the rebranded insurance fraud you call defensive medicine?

Posted by: Justinian Lane | July 22, 2008 12:15 PM

Defensive medicine is not insurance fraud. It is court imposed standard of due care, imposed at the point of a gun. The fraud has taken place during plaintiff expert testimony. However, the Supreme Court has given these defrauding plaintiff experts absolute immunity, in order to allow the land pirate to plunder clinical care.

It goes beyond defensive medicine, around 10% of the budget. The wastage includes end of life care, around 25% of the budget. Again, the court has imposed these painful, wasteful, and worthless procedures on the doctor, on pain of criminal prosecution, this time, not just civil litigation. The land pirate prosecutor has called doctors elder abusers for failing to comply with these inappropriate standards of care to dying people in pain.

If one considers the total immunity granted by the criminal lover lawyer to substance abusers add another 15 or 20% of care that could be easily prevented.

If the public can get rid of the lawyer, the medical profession can cut its bill by 50%, and improve care overall. As a patient, I would support direct action against the cult criminals now in full control of clinical care. For every judge and lawyer removed, the system can probably save $200 million a year.

Posted by: Supremacy Claus | July 22, 2008 12:33 PM

And, once again, Tort Deform censors one of my extensive comments. Not that Justinian would have read it, since he apparently didn't read the last time I replied to his question about defensive medicine studies, and continues to dishonestly ignore the other studies that are inconvenience to his false claims.

Posted by: Ted | July 22, 2008 4:12 PM

And once again, Ted, no one here is censoring you. If they were, your scandalous personal attacks against me wouldn't have made it in the comment threads.

Posted by: Justinian Lane | July 22, 2008 4:29 PM

Yet somehow the censored comments are never published.

Posted by: Ted | July 22, 2008 4:52 PM

The comments may have been lost. Was it posted, and then deleted, or did it time out while you posted it? I've noticed it take well over a minute to post my comments sometimes. If I navigate away from the page too quickly, my comment doesn't make it.

Posted by: Justinian Lane | July 22, 2008 4:55 PM

Ted: I am banned from top lawyer blogs, permanently, including yours. Censorship is cult. It does not upset me.

Posted by: Supremacy Claus | July 22, 2008 5:48 PM

I could have sworn I've seen you post at OL recently, Supremacy.

Censorship does upset me, though. I'll state again that I have no reason to believe TD is censoring Ted.

Posted by: Justinian Lane | July 22, 2008 6:00 PM

Ted has deleted all posts for years. Eugene banned me years ago, and set out an ultra-nasty manisfesto right afterwards, below the comment section. Prawfblawg will delete any comment I sneak in loving correction of the lawyer academic. Same with the Legal Ethics Forum and Empiral Law Studies, after only a single post. Many others do as well. Blackprof and this cult criminal dump are all I have left. The sole one that hurt my feeling was the Empirical Studies one. I thought I would find my anti-Medieval garbage buds there. Nope.

Walter banned me just recently after he posted a satire on banning people, and I called him and Ted hypocrites, opposing bans but banning people. Any loving personal remark to promote their personal growth, they get touchy. Before banning me outright, Walter never, never, never allowed any fundamental criticism of the lawyer. He would allow only the narrowest technicality point. That made me think, he is not a real reformer, but a corporatist running dog, limiting the criticism of the lawyer to the damage they do to corporations, rather than to crime victims, for example.

Many permit curse words, live links to nauseating bestiality sites, personalized, specific death threats, links to unlawful foreign pharmacy promotions. We are sophisticated adults here, they figure. Mention, cult? Gone in 60 Seconds.

I commend Kia and you on the courage to not do that.

Posted by: Supremacy Claus | July 22, 2008 7:07 PM

If our legal malpractice laws and system are so good, why is it not copied for legal malpractice?

S.C. has brought this up many times but it has never been truly addressed. I would really like to know.

Posted by: throckmorton | July 23, 2008 1:01 PM

Throckmorton: Can you elaborate a bit? They are fairly similar...

Posted by: Justinian Lane | July 23, 2008 1:09 PM

In legal malpractice it is not enough to show that the case was lost or that the award was not enough as a result of a poor strategy by the attorney. In medicine, a poor stategy is a basis for malpractice. In medicine, there is a what is considered standard of care, in law there is not. There is a only a blanket statement that the attorney only has to act "reasonably".

Medical malpractice in general is any act or failure to act by a member of the medical profession that results in harm, injury, distress, prolonged physical or mental suffering, or death to a patient while that patient is under the care of that medical professional.

Legal malpractice however falls under a specific set of guidelines, and there is some variation from state to state. The determination of the viability of a legal malpractice case must be made by a licensed member of the legal profession currently practicing law. Many variables may affect the viability of the legal malpractice case such as individual state laws and the length of time from the occurrence of injury to the time legal action is sought. (from L D H P Medical Review Services Corp.)

Posted by: throckmorton | July 23, 2008 2:30 PM

Dr. T: The criminal cult system is rigged airtight.

The adverse third party has to overcome a lack of privity (formal financial relationship) obstacle to sue opposing lawyer. No other defendant has had that barrier to accountability for over 100 years. The lawyer then says, the lawyer has no duty to opposing party. However, statutes and case law by the dozens enumerate clear duties of the lawyer to the other side, in the Rules of Conduct, of Evidence, of Civil Procedure, of Criminal Procedure, and 100's of precedent setting appellate cases.

OK. How about the client of the lawyer, who does have privity? He has to prove the lawyer deviated from professional standards of due care and caused his damages, without unforeseen intervening causes. He does.

Can he get compensated for the injury suffered from lawyer carelessness? No. He must then prove, he could have won the trial he lost. He must conduct a full second trial that he lost. OK. He proves he could have won the original lost trial but for the carelessness of the negligent lawyer.

Can he now get compensated for his damages? No. He must now prove he could have collected from the original defendant. He must prove the original defendant had reachable assets. Try getting the financial records of someone you sued and lost to.

Have a nice day, criminal cult enterprise.

One of the aims of torts is to substitute for violent retaliation. This rigging fully justifies violent self-help against lawyers and their running dogs on the bench. You cannot block legal recourse, then say, don't hit me.

Posted by: Supremacy Claus | July 23, 2008 6:17 PM

Dr. T: The criminal cult system is rigged airtight.

The adverse third party has to overcome a lack of privity (formal financial relationship) obstacle to sue opposing lawyer. No other defendant has had that barrier to accountability for over 100 years. The lawyer then says, the lawyer has no duty to opposing party. However, statutes and case law by the dozens enumerate clear duties of the lawyer to the other side, in the Rules of Conduct, of Evidence, of Civil Procedure, of Criminal Procedure, and 100's of precedent setting appellate cases.

OK. How about the client of the lawyer, who does have privity? He has to prove the lawyer deviated from professional standards of due care and caused his damages, without unforeseen intervening causes. He does.

Can he get compensated for the injury suffered from lawyer carelessness? No. He must then prove, he could have won the trial he lost. He must conduct a full second trial that he lost. OK. He proves he could have won the original lost trial but for the carelessness of the negligent lawyer.

Can he now get compensated for his damages? No. He must now prove he could have collected from the original defendant. He must prove the original defendant had reachable assets. Try getting the financial records of someone you sued and lost to.

Have a nice day, criminal cult enterprise.

One of the aims of torts is to substitute for violent retaliation. This rigging fully justifies violent self-help against lawyers and their running dogs on the bench. You cannot block legal recourse, then say, don't hit me.

Posted by: Supremacy Claus | July 23, 2008 6:23 PM

The good news is that three state courts have already declared medmal caps to be unconstitutinal

Posted by: Thomas Sharon, R.N., M.P.H | September 18, 2008 11:39 AM