Why does California have the only good malpractice reform?

[Prospero]

---

Members don't see this ad.

It seems to me that if something like California's Medical Injury Compensation Reform Act (MICRA ) has worked so well, the entire nation should want to adopt a similar system. Why is there still so much debate and so little done when there is already a system that has shown itself to be effective?

 

[docB]

MICRA was enacted because the lawyers in CA at the time didn't realize what it might mean. In 1975 the practice of most med mal lawyers was to maximize the economic damages and go after those. Economic damages are things like lost wages, medical care, housing, transportation costs, etc. The climate at the time didn't support going after huge punitive damages. Ie. the juries then didn't have the stick it to the doctor attitude so prevalent now. This was before the real golden age of med mal, John Edwards and all the rest. MICRA could never be passed now and hasn't been repeated because the lawyers block it.

 

[QuikClot]

It seems to me that if something like California's Medical Injury Compensation Reform Act (MICRA ) has worked so well, the entire nation should want to adopt a similar system. Why is there still so much debate and so little done when there is already a system that has shown itself to be effective?

Has CA become an exception to the double-digit growth in healthcare costs we see nationally? Do they spend less than the 16.8% of GDP we spend nationally, perhaps the 8-11% most other industrialized nations spend? Of course not. So in what sense is it "effective"? Effective in fattening the wallets of what is already one of the richest professions you can name? Effective at growing insurance company profits? Why should the vast majority of people, who are more likely to be on the receiving end of a medical mistake than commit one, support such legislation?

 

[Prospero]

Has CA become an exception to the double-digit growth in healthcare costs we see nationally? Do they spend less than the 16.8% of GDP we spend nationally, perhaps the 8-11% most other industrialized nations spend? Of course not. So in what sense is it "effective"? Effective in fattening the wallets of what is already one of the richest professions you can name? Effective at growing insurance company profits? Why should the vast majority of people, who are more likely to be on the receiving end of a medical mistake than commit one, support such legislation?

Well, here's one reason, just look at what is expected to happen if MICRA was not in place . As you can see, it does not really make much sense to "hold out" for a malpractice suit because the rise in health costs alone kind of defeats that purpose. Your average person that will not have a malpractice case would pay much more for the hope of winning a large settlement at some point? I hardly think so. Those recieveing medical care should support it because it means that there will be medical care to receive! It is really hard to get a malpractice suit going if you can't even find a doctor.

Then there's the fact that MICRA allows patients to get a larger settlement (restrictions on lawyer fees) and get that settlement quicker. The only ones that suffer from MICRA are malpractice lawyers, and I find it hard to believe that they are really in such a bind. Afterall, shouldn't they be taking these cases to get justice for clients, not to make the most money possible? But thats another matter. It seems to me that there's a lot more people out there that are NOT malpractice lawyers than that are malpractice lawyers. Since they're the only ones "hurt" (oh no I can't buy a bently every time I win a case), there should not be that much of a fight against such MICRA-like reform.

I'm just pointing this out because it would be nice to actually have a practice when I get done with school, rather than be working simply to pay for my malpractice premiums.

 

[QuikClot]

Well, here's one reason, just look at what is expected to happen if MICRA was not in place .

This site looks very much like posturing by a physician's lobby group. Is there real evidence that this measure has signifigantly reduced costs?

As you can see, it does not really make much sense to "hold out" for a malpractice suit because the rise in health costs alone kind of defeats that purpose.

You're assuming, a la "trickle-down economics," that all physician costs (and savings) are passed on to the consumer. That's wrong. As for people accepting a small cost, in the hopes of a big payoff if something goes wrong . . . that happens all the time. It's called insurance.

Those recieveing medical care should support it because it means that there will be medical care to receive! It is really hard to get a malpractice suit going if you can't even find a doctor.

Take a look around you (figuratively). There are hundreds if not thousands of intelligent, hardworking people clamouring to be doctors on this website alone. There is no shortage, and there is not going to be any shortage, except, as there is in any profession, in select locations and specialities.

Then there's the fact that MICRA allows patients to get a larger settlement (restrictions on lawyer fees) and get that settlement quicker.

Restrictions on fees don't necessarily result in larger settlements . . . the intention of this restriction is not to protect the patient, but to discorage lawyers from representing them.

The only ones that suffer from MICRA are malpractice lawyers, and I find it hard to believe that they are really in such a bind.

That's nonsense. A $250,000 cap on non-economic damages? Let's render you severely ******ed by hypoxia, or incontinient and on dialysis, or impotent, or paralyzed, and see if you think that's fair.

I'm just pointing this out because it would be nice to actually have a practice when I get done with school, rather than be working simply to pay for my malpractice premiums.

And that's what it's really all about: greed. To save money on a small, predictable cost of doing business, you want to go after the guy who had the wrong leg cut off. Sorry, you work at Wendy's. You aren't worth much.

Give it up. You want to reduce malpractice premiums? Try not screwing up.

 

[docB]

You want to reduce malpractice premiums? Try not screwing up.

Ah. The ever useless "There's no malpractice crisis. Doctors just need to be perfect." stance.

 

[docB]

I just read your post in EMS. Tough break on the baby call. Medicine in the real world is messy and s--t happens. Do you really think that holding medical people to a god like standard of perfection with unlimited penalties makes things better?

 

[QuikClot]

It is the same standard that everyone else lives under in our society. If you poison a river, if you sell flame ******ant that burns like wicker, if you bankrupt people by conning them out of their life savings, if you hit a girl scout troop in a crosswalk while getting a blowjob . . . you get sued. And a jury decides what the damages are. The system is far from perfect, but I don't think you fix it by going after the person who was hurt and the people who represent them. They are almost always the weaker party.

Put another way, we live in a society where money and connections are very powerful. If a nuclear plant gives the people who work there cancer, if a doctor cripples a food service worker operating drunk, if a company sells smoke detectors that fail after a month of use, the people hurt often have no recourse through the government, and no way to get justice -- except a lawsuit. Which is why conservatives love "tort reform." It's not because "trial lawyers" are rich parasites. These are the people who gave us Haliburton and whose driving ambition is to eliminate the capital gains tax; they love rich parasites. But "trial lawyers," for their own selfish reasons, give recourse to people who otherwise would be completely powerless.

 

[QuikClot]

From USNews:

Malpractice premiums (total)

1993 $2.9 billion

2002 $4.9 billion


Insurer payments after jury verdicts (total)

1993 $147 million

2002 $172 million


http://www.usnews.com/usnews/health/articles/030630/30malpractice_3.htm

Hmmm . . . .

 

[Law2Doc]

It's not because "trial lawyers" are rich parasites. These are the people who gave us Haliburton and whose driving ambition is to eliminate the capital gains tax; they love rich parasites. But "trial lawyers," for their own selfish reasons, give recourse to people who otherwise would be completely powerless.

I agree with this. There are lawyers on both sides of every case, and the whole basis of contingency fee is to enable those who are injured to obtain qualified counsel regardless of their ability to pay. The problem with this for doctors is that outcomes are bad quite often, and when a relative dies it's not typical for a family to shrug it off. Thus doctors tend to get sued more frequently than other segments of society. It is not the system that is bad per se, it actually works reasonably well in terms of remedying wrongs in other segments of society. Someone makes a defective car part that causes an accident, and the company gets sued for millions, it's probably appropriate, the other defective parts get recalled, and in the long run helps us all. It is just that this particular profession (medicine) has higher litigation risk than others, is inhabited by individuals who directly act rather than corporations which act through employees, and it's often harder to pinpoint whether any negligence occurred (esp. eg. in OB/GYN situations, where bad results occur in some percentage of births regardless of negligence).
If you do really well in life, you will have lawyers lining up to assist you as frequently as sue you.
At any rate, CA lawmakers and courts have a reputation (among the rest of the nations' lawmakers) for being too progressive, and so the fact that they jumped on a particular bandwagon usually dooms it from occurring elsewhere.

 

[Prospero]

So, if a cap on non-economic damages is not going to help then what will? The status quo is not exactly a pretty option, at least not for those of us that want to practice medicine. Perhaps malpractice coverage should be taken up by the government. If it's taken away from the private insurance companies then rates might actually stay somewhere reasonable. It might also encourage a real effort to solve the problems with malpractice because then the government will lose money if their system does not work.

 

[Law2Doc]

So, if a cap on non-economic damages is not going to help then what will? The status quo is not exactly a pretty option, at least not for those of us that want to practice medicine. Perhaps malpractice coverage should be taken up by the government. If it's taken away from the private insurance companies then rates might actually stay somewhere reasonable. It might also encourage a real effort to solve the problems with malpractice because then the government will lose money if their system does not work.

I can give you two thoughts at possible solutions, which seem to work well in other areas of the law, ideally used in combination. (But they likely have drawbacks and permutations I haven't considered.) First, you could have juries determine liability, but have the damages actually determined by a judge. Thus at least you'd have someone learned and not out to stick it to the rich making the call. Second, you could have doctors or their carriers pay into a fund from which awards nationally are made (as is done in asbestos, vaccines, etc.); not sure if this would be better per se, but would at least allow the risk to be spread more broadly.

 

[ncalcate]

Put another way, we live in a society where money and connections are very powerful. If a nuclear plant gives the people who work there cancer, if a doctor cripples a food service worker operating drunk, if a company sells smoke detectors that fail after a month of use, the people hurt often have no recourse through the government, and no way to get justice -- except a lawsuit. Which is why conservatives love "tort reform." It's not because "trial lawyers" are rich parasites. These are the people who gave us Haliburton and whose driving ambition is to eliminate the capital gains tax; they love rich parasites. But "trial lawyers," for their own selfish reasons, give recourse to people who otherwise would be completely powerless.

Since you seem to singing the praise of the trial lawyers, why don't you check this out:

http://www.madisonrecord.com/arguments/argumentsview.asp?c=171855

How could you possibly justify $1.7 billion in contigency fees? Did Tillery, the attorney, make any offers to share his billions with his "powerless" clients? No. At the end of the day, many trial lawyers are simply extortionists who attempt to take profits from American corporations to pay for their lavish lifestyles.

Tort reform is not about depriving the "powerless" of their day in court. It is about eliminating billion dollar contigency fees and abuse of the legal system by select trial lawyers. So a claim that trial lawyers are only trying to help the "powerless" is somewhat humorous when you look at a case like the one above.

 

[Khia18]

I see both sides of the issue. I know it sucks that the whole job is to save people and when you can't fix them they want to come after you. And yes there are bad lawyers out there and ridiuclous, frivolous lawsuits. But there are bad, negligent doctors too. The majority of the time, the cases that get through are genuine and valid. Telling a family who's only breadwinner is dead or no longer able to provide, that they will only be entitled to x amount of dollars is deplorable. If the person will need care for the rest of their life, that is expensive, in addition to living and family costs.
Its not about screwing doctors over. Its about forcing the negligent ones to answer for mistakes. If someone blew a red light drunk or driving recklessly and ran over someone, no one would think twice about prosecuting him. Likewise, if say someone driving normally doing everything right but say slid on a patch of ice and then hit someone, he would probably not be charged. There is a difference in medicine between honest mistakes and negligence, and it is the latter that is prosecuted. Its not the accident itself that is called into question, but what enabled the accident to occur. Intubating the esophagus is not negligent, its a mistake. However, failing to notice for 10 minutes and not checking the CO2 levels while continuing to ventilate and thus gorking the patient is negligent. Shady lawyers, shady cops, shady accountants, and other dishonest people are sued all the time. Everyone should be held accountable, especially when it is human life in their hands.
That said, people abuse the system and are just plain ready to throw tantrums when they don't get their way, regardless of feasibility. There are "ambulance chasers" out there who will spin anything. What really hurts doctors is their malpractice insurance companies. Those companies are the first ones to put the doctor's interests last and place a monetary value on everything.
Sorry for the essay, but please remember your patients. If your goal, as it should be, is to improve quality of life, then shouldn't parameters exist that keep people from taking short cuts or doing other things that could harm their patients? Aren't those who unwittingly put their trust (or life) in an incompetent's hands entitled to restitution?
Okay, I'm sure I've pissed off a lot of people now, so I'm getting off my soap box.

 

[docB]

The majority of the time, the cases that get through are genuine and valid.

What are you basing that statement on?

There is a difference in medicine between honest mistakes and negligence, and it is the latter that is prosecuted.

No. With med mal anyone can sue you for anything wheather it was negligent, honest mistake, no mistake but bad outcome or whatever they feel like.

 

[Prospero]

Telling a family who's only breadwinner is dead or no longer able to provide, that they will only be entitled to x amount of dollars is deplorable. If the person will need care for the rest of their life, that is expensive, in addition to living and family costs.

These things are covered as "monetary costs" and are not capped under MICRA, nor should they be capped. If it's going to take 2 mil to get you through whatever happened, then so be it. What is limited is the "pain-and-suffering" awards that are not based on any loss of income or cost of treatment.

 

[chef_NU]

First, you could have juries determine liability, but have the damages actually determined by a judge. Thus at least you'd have someone learned and not out to stick it to the rich making the call.

👍 👍

I like this idea. It does give judges incentive to be buddy buddy with malpractice lawyers. I still think it is better than what we have now.

 

[QuikClot]

So, if a cap on non-economic damages is not going to help then what will? The status quo is not exactly a pretty option, at least not for those of us that want to practice medicine. Perhaps malpractice coverage should be taken up by the government. If it's taken away from the private insurance companies then rates might actually stay somewhere reasonable. It might also encourage a real effort to solve the problems with malpractice because then the government will lose money if their system does not work.

Insurance Companies Raking in Huge Profits

Contrary to what insurance lobbyists may be telling lawmakers, newly-released data showsthat insurance company profits, including those of medical malpractice insurers, are booming andinsurance analysts are privately raving about it.According to the September 15, 2003 issue of Business Insurance (“Market conditions stillripe for insurer profitability; Buyers to see rate hikes ease”), 14 property/casualty insurers saw a35.9% increase in net income, to $7.5 billion, in the first half of 2003. Only Hartford booked an$888 million first-half loss, reflecting a $3.91 billion pretax charge for asbestos reserves in the firstquarter.By far the largest insurer reporting was American International Group, a major medicalmalpractice writer. AIG's net income increased by 30.3% in the first half of 2003, and it had ashockingly low combined ratio of 92.7%. That means it is making a lot of money even before addingin investment income.

http://64.233.179.104/search?q=cach...nce+company+profits"&hl=en&gl=us&ct=clnk&cd=1

Given that insurance companies seem to be raking off huge profits, and raising premiums mush faster than awards are rising, one thing to consider might be creating a non-profit corporation selling malpractice insurance at cost.

Between the tax advantage, and lessening profit-taking, rates could fall dramatically. The rates could be structured to protect critical specialities that have taken a beating (like Ob/Gyn) and encourage things like rural medicine and primary care practices, which we need more of.

This might be a private undertaking by doctors and/or other healthcare players, or government-sponsered like Fannie May. Just a thought.

 

[QuikClot]

ncalcate, let me recommend a website to you: http://www.fallacyfiles.org/. I'm going to quote from it extensively while I try to make sense of your post.

Since you seem to singing the praise of the trial lawyers, why don't you check this out:

This is what is called a "straw man argument" (http://www.fallacyfiles.org/strawman.html). Since it is a distorted reflection of something I said (that trial lawyers serve a useful purpose in the system, whatever their motives) it is an example of the "extreme man" subfallacy (

http://www.madisonrecord.com/arguments/argumentsview.asp?c=171855

How could you possibly justify $1.7 billion in contigency fees?

There are a number of fallacies going on here. This is anecdotal evidence, but the more serious problem is that is unrepresentative sample (http://www.fallacyfiles.org/biassamp.html) which does not reflect the reality of most trials.

Then there is the problem that you are misrepresenting your evidence. You say: "Did Tillery, the attorney, make any offers to share his billions with his "powerless" clients? No."

In fact, Price v. Phillip Morris was a 10.1 billion dollar verdict, meaning that the lawyers split about 15% of the fees. He did not share his "billions" (and it should be billion, singular); the defendants shared their billions with him, and they kept fives times as much as they shared.

Your vilification of this lawyer is an example of the "bad company fallacy" (http://www.fallacyfiles.org/guiltbya.html) whereby you assert that this lawyer is bad, therefore lawyers in general are bad, therefore malpractice needs to be reined in.

Tort reform is not about depriving the "powerless" of their day in court. It is about eliminating billion dollar contigency fees and abuse of the legal system by select trial lawyers. So a claim that trial lawyers are only trying to help the "powerless" is somewhat humorous when you look at a case like the one above.

Again, treating one of the largest jury verdicts in history, in which the plantiff was found to have systematically deceived and thereby brought about the death or injury of millions of people, as if it were typical of the tort system, when all jury verdicts for malpractice in a whole year ($172 million in 2003) are less than one-fiftieth of this verdict, is an example of a weak analogy.

 

[Stwy]

Well, here's one reason, just look at what is expected to happen if MICRA was not in place . The only ones that suffer from MICRA are malpractice lawyers, and I find it hard to believe that they are really in such a bind. Afterall, shouldn't they be taking these cases to get justice for clients, not to make the most money possible? But thats another matter. It seems to me that there's a lot more people out there that are NOT malpractice lawyers than that are malpractice lawyers. Since they're the only ones "hurt" (oh no I can't buy a bently every time I win a case), there should not be that much of a fight against such MICRA-like reform.

Ah..the ignorance of youth. I used to think like this poor misguided guy...but now I know better. As a physician and surgeon, I know all about malpractice risk. However, when an idiot 3rd year Stanford orthopedic resident refused to see my mother at the nurses and families request for 10/10 abdominal pain and just ordered dilaudid (it was a Sunday afterall) -- with resultant catastrophic death that followed, I would like to give a simple lesson to our misguided young friend.

If you are young, old or a low wage earner -- you cannot get an attorney to represent you when the medical system has killed a family member. It just doesn't make economic sense. With the average cost of taking a case to trail estimated at any where from 50-100K, that's a settlement of 150-200K minus lawyers fees; as lawyer fees are restricted under MICRA, it is a cash loser for attorneys to take these cases to trial. Big institutions (like Stanford), with nearly endless resources, make these cases as expensive as possible to dissuade attorneys from going to trial. I've now learned big institutions use other nefarious techniques to obstruct justice. It's sickening. Risk management job is to limit exposure at all costs (ethics be damned, in my opinion).

Don't believe me? Google "Rand Micra"; interesting reading...

I don't blame people for thinking MICRA holds premiums down -- it has been an incredibly effective insurance company misinformation campaign -- all to maximize insurance profits. Look up YouTube "California MICRA".

I would also ask my young friend to look up "social justice" -- what MICRA does is effectively discriminate against the most vulnerable people in our society, i.e., the old, young, and low wage earners.

MICRA must be revised to give malpractice attorneys (which serve a very important function as a counter balance to well funded medical monstrosities) reasonable compensation for their time and energy.