Saturday, November 7, 2009

Tort Reform for Lawyers!



The law has many privileges and protections for its own players that are necessary for the legal process to operate effectively. For example, we all accept that a judge should have absolute legal immunity for decisions and judgments made in his judicial capacity. If a judge could be sued because he ruled that certain evidence was inadmissible, for example, then the system would collapse. Immunity allows judges to decide legal issues freely, without any threat that he could be legally vulnerable. This is how it should be.

Earlier this week, the U.S. Supreme Court heard oral arguments that challenge legal immunity for prosecutors, under certain circumstances. As an aside, I learned an astonishing fact in the New York Times article that reported that …prosecutors cannot be sued for anything they do during trial, including knowingly submitting false evidence. Read this sentence again. I had to as I was sure I had misread it initially. Immunity for trial conduct was not the issue being argued before the Supreme Court this week. The case at bar was whether prosecutorial misconduct prior to trial should be protected also. Two Iowan prisoners, freed by the Iowa Supreme Court, are now suing two prosecutors for fabricating evidence against them and tainting witnesses before trial. A lower court ruled that their case could proceed. The prosecutors, who are now defendants, argue that their pre-trial activities are beyond the reach of the law and fall under the immunity umbrella.

We should be cautious before expressing outrage and demanding that lawyers’ immunity be stripped. If attorneys were vulnerable, then this could invite frivolous lawsuits against them by litigants who are dissatisfied with the outcome of their case.

Frivolous lawsuits? This phrase sounds familiar. Any physician who still has a pulse will develop a rapid heart beat just on hearing the term. While the medical profession isn’t the sole target of FLs, we have a rich and unwelcome experience with them.

The Supreme Court case is examining a concept that could relate to the medical malpractice quagmire. The reason that judges and lawyers are shielded is so they are free of extraneous distractions and fear of lawsuits. Immunity improves their judicial performance. Why should physicians be vulnerable for acts and judgments made during our official professional capacities? If physicians functioned with immunity, wouldn’t our performance improve? Why doesn't the immunity argument apply to the medical profession?

Of course, if physicians enjoyed the same immunity as our legal colleagues, we would need another mechanism to compensate injured patients. I’m open to suggestions. Although nearly any system would be better than the current one, there is no consensus on how to proceed. Tort reform is a volatile issue in the public square and in the blogosphere. Spirited and strident blog posts appear daily. Just this week EverythingHealth listed various factors that fuel medical malpractice litigation, but omitted medical negligence from the list. Shouldn't medical malpractice be the sole reason for a lawsuit? KevinMD opines in his usual measured manner, that the current tort system must be reformed, not for physicians' sakes, but for patients' sakes. On the other side of the issue, a Huffington Post blogger argues that tort reform advocates are self-serving disseminators of myths and misinformation. (Yes, the Whistleblower did comment on the sight.)

We can’t sue a teacher because little Johnny received a C- on his history test. We can’t sue a basketball coach because the team lost the championship. We can’t sue our congressman because he voted against our district’s interest. We can’t sue an army general because the military strategy failed. But, we can sue a doctor who has done his job in good faith.

Those who deride my reasoning will present arguments why we physicians are somehow different from other professions who are immune for their official conduct. Let’s see what they come up with. No matter how outrageous their arguments are, I guarantee them complete immunity. The Whistleblower is their sanctuary.















35 comments:

LeisureGuy said...

Well, to take an obvious example, if a teacher or coach in the course of their duties cause the death of a student, they are likely to be sued. They have no immunity for that---nor do lawyers or doctors, and most people would subscribe to that. And frivolous lawsuits are generally dismissed before trial and can trigger a successful counter-suit. I highly recommend that you read The Medical Malpractice Myth (http://bit.ly/3eM0wN). One reader review:
"This book is a model for what social science can do, in four ways.
First, it takes on an important topic--one that has generated incredible heat in the popular press and in political circles.
Second, it takes an entirely fair perspective. Old fashioned as it may seem, the author is actually interested in finding out the truth about the med mal problem.
Third, it surveys the available literature in the social sciences, reads and cogently digests every significant study, and assess the merits of each. The author is not an economist, but his understanding of economics and his sober and astute assessment of the quantitative AND qualitative evidence is terrific.
Finally, the book does all this with a clarity and cogency of writing that make it eminently readable. This is not a dull slog through endless tables and figures. While the empirical evidence is discussed, and there is even some attention paid to issues of methodological reliability and so on, the prose is lucid and no one interested in the topic will find it tough going in the least.
In fact, no one interested in the topic--from doctor to lawyer to politico--can afford not to read this book. If only more social science were this good, the world would be a better place."

And another reader review, by one Mark Mayerson, is even better. You can find it at the link.

LeisureGuy said...

Come to think of it, I would love to read on your blog a review of that book, in which you point our errors of fact or reasoning (or, conceivably, agree with the book).

Anonymous said...

"prosecutors cannot be sued for anything they do during trial, including knowingly submitting false evidence."

Most government actors have some form of tort immunity. As employees of the state (or county) there is some protection. Just like certain physician jobs in govt.

If you think lawyers in general are immune from suit, you're incorrect. They can be held liable just like physicians for professional negligence. Just as you can sue an architect for negligently designing a building. I don't know why you think otherwise. Perhaps because they're not always crying for the government to cap their exposure to their clients as you do your patients.

"On the other side of the issue, a Huffington Post blogger argues that tort reform advocates are self-serving disseminators of myths and misinformation."

Not all the believers are, but the money behind the current incarnation of the tort reform movement is totally self serving. Follow it and you'll find in large part the tobacco industry, followed closely by your large corporations and insurers. That's not news, nor is it a secret. Did you not know that Dr. Kirsch? I realize it's distressing to find out you're simply allowing yourself to be the face for much more powerful interests who care little about you, but it is in fact the case.

"Just this week EverythingHealth listed various factors that fuel medical malpractice litigation, but omitted medical negligence from the list. Shouldn't medical malpractice be the sole reason for a lawsuit?"

For a lawsuit, yes. But the mere existence of negligence is not what causes people to go into a lawyer's office. In the same way that were you to be run over by your brother in law today, you might not pursue a claim for damages. But were you to be run over in the same manner by a stranger, you might very well. Negligence exists in both, but your motivation for pursuing a case is different, correct? Again, this is not surprising news.

Michael Kirsch, M.D. said...

I thank the above commenters. I realized that my post was not airtight. I maintain, however, that the recent case argued before the Supreme Court introduces a new principle into the medical malpractice issue. Some folks have legal immunity and cannot be sued for incompetence that stems from an official action. For example, if a senator votes for a terrible bill that harms his constituency, we can vote him out, but we can’t sue him. The rationale is that we don’t want our legislators to be distracted so they can (theoretically) focus on our interests. A physician, however, is often sued for an adverse event that is the result of a professional action, even when there has been no negligence. Quite a contrast, I think.

Anonymous said...

" A physician, however, is often sued for an adverse event that is the result of a professional action, even when there has been no negligence. Quite a contrast, I think."

Your comparison with the senator is inept, for one obvious reason. Very few bills are objectively, for every constituent, "terrible", under any definition of terrible.

As to the physician being sued, you're assuming negligence can be known PRIOR to the case even being FILED. Unfortunately, it's impossible to know all the facts, or even get the provider to explain themselves, without compelling them to do so via a lawsuit. ANY system to resolve disputes will have cases brought in to it where it will ultimately be determined there was no actionable conduct.

Some physicians already get the benefit of limited liability in working for government actors, just like the prosecutor. It's one of the tradeoffs that come with the (usually) lesser salary of working for the government.

You're trying to stretch something that doesn't really work as a point.

Michael Kirsch, M.D. said...

One of the advantages of commenting anonymously, is that you can throw adjectives around like ‘inept’ toward those of us who sign our names to what we write. As I stated, I realize that my post is vulnerable. If it weren’t, then there would not be an opportunity for an exchange of views. Of course, I understand your point re the discovery process. My point is that there are professions, unlike mine, where misconduct is not actionable. Those who have implemented these protective policies did so to maximize certain occupations’ professional performances. In medicine, there is an opposite approach. The tort system, we are told, serves to increase medical quality. In my view, it has quite the opposite result.

Anonymous said...

"My point is that there are professions, unlike mine, where misconduct is not actionable."

Which ones? Certainly not the legal profession.

"The tort system, we are told, serves to increase medical quality."

There is no "tort system". There's a civil justice system, and a tort is merely a description of a particular cause of action in that system.

The primary goal of said system when it comes to actions sounding in tortious conduct is to determine the responsibility of the parties for the action, and then if necessary to assess damages. Nothing more.

Any benefit to "medical quality" is ancillary at best. Criticizing the legal system for not improving medical quality doesn't make much sense. At best, individual lawsuits (as opposed to class actions) can be a very broad deterrent to certain corporate actors, but at the end of the day, medicine will be responsible for improving medical quality.

LeisureGuy said...

You'll probably be interested in an article in Slate today: http://bit.ly/2DNEmP

From the article:

But there's a major problem with seeing malpractice reform as a quest to reduce bogus lawsuits: Doctors make huge, negligent mistakes quite regularly—and they usually get away with it. In a landmark 1991 study, Harvard researchers reviewed the hospital records of tens of thousands of New Yorkers and estimated that almost 27,000 patients were harmed by negligent medical care—yet only 3,500 actually filed claims. The system, the report concluded, "rarely holds providers accountable for substandard care." In 2006, another Harvard study concluded that only about 15 percent of malpractice litigation costs involved claims without errors—and only 3 percent of all claims involved no patient injury. Further, about four in five claims were adjudicated properly. In 2006, a study in Health Affairs concluded there was no crisis in doctors' malpractice costs, since inflation-adjusted premiums were lower in 2000 than in 1986; another study last year found most doctors in Massachusetts (declared a "crisis state" by the American Medical Association) paid lower premiums in 2005 than in 1990.

And while doctors hate to admit it, lawsuits can save lives. Motivated in part by liability suits, anesthesiologists dropped the risk of death in surgery from one in 5,000 to one in 250,000 over two decades, and their premiums have dropped from being the highest among doctors to some of the lowest. At the hospital where I trained in pediatric cardiology, a publicized malpractice case in which a child died led quickly to critical improvements in patient safety throughout the hospital.
So here's the dilemma: On one hand, doctors believe—despite some evidence to the contrary—that there are too many frivolous lawsuits, and they respond by ordering a lot of unnecessary testing and treatment. It's probably impossible to change their perception, which arises from some well-publicized, if uncommon, bad decisions. As a result, their solution is to make it harder for patients to sue. (That's the general position taken by Republicans.) On the other hand, patients often get harmed by negligent medical care, and lawsuits are their only way to fight back. Doctors are already getting away with lots of negligence, so making it harder to sue seems unfair. (That's the Democrats' view.)

There's a more constructive way to frame the debate about medical liability: How can we ...
-—--—--—--—--—
This is Leisureguy again: Why don't physicians follow the lead of the anesthesiologists and start working to reduce malpractice, which will lead to fewer malpractice lawsuits and lower malpractice premiums? Is it just too much trouble?

Dan Walter said...

"We can sue a doctor who has done his job in good faith." Fair enough. Should we be able to sue a doctor who has NOT done his job in good faith? http://adventuresincardiology.com/

Left-Eyed Jack said...

In 14 years as a Court Reporter, I observed that it is a lot more difficult to sue someone than most supsect. First, one must find a lawyer who is interested in your case. This is not often easy due to the fact that lawyers expect to be paid for their efforts and will not usually take a case that will not yield a payday for them and their client in the end. As for my observation about what leads to a lawsuit, it is most often triggered by an insurance company that is being unreasonable and nonresponsive to the patient's damages. This is a cause for lawsuits across the board, not just "medical malpractice."

My current belief on this issue is that insurance companies are overstating the problem and using scare tactics to keep their customers, that would be doctors, in line on this issue. This leads to bad medicine and a huge expense to everyone as the insurance companies attempt to keep their losses low.

For many years I have suffered from several chronic medical conditions and cannot complain of my treatment most of the time. There was the time, however, when a doctor over-prescribed a medication to the point that it endangered my life. My pharmacist caught it, not a doctor, in observing that I had lost 60 lbs. over three month's time. I complained of my symptoms every time I went to the doctor, but she was dismissive. The doctor never admitted that she had made any mistake whatsoever, and the large health clinic that she worked for "conveniently" lost my huge (12-inch) medical file. Now, that's what I call malpractice.

I didn't sue. Why? Because of all the years I spent in the court system, I knew that it would take years to get to trial and I still might lose to some "slick" insurance lawyer. I've seen it many, many times. I have settled for the knowledge that, against all odds, I'm still here to tell the tale.

Fourteen years in the court reporter's chair taught me one thing: there is no justice in the Justice System. Just like doctors, and all us professionals, everyone involved is just a human being, and sometimes everybody gets it wrong. BUT more often than not, I saw things turn out as they should.

Thanks for your thoughtful blog.

Anonymous said...

What a joke.

The same Conservatives who say government can't do anything right and should stop imposing unnessary and arbitrary regulations now want government to intervene in the court system and overrule the judgement of an experienced judge and 12 citizens chosen by two private industry lawyers.

Conservatives now say the government should regulate jury awards by placing arbitrary caps of $250,000 on jury awards..... even after a jury of 12 citizens , who have listened carefully to both sides of an arguement, deliberated for hours and finally decided for the plaintiff and against a doctor who has been grossly negligent.

Conservatives can never make up their minds.

Hopefully they'll remember their position on government interference in private lawsuits when the government attempts to impose reesstrictions on insurance companies, doctors, hospitals and drug companies...who all bleed every nickel out of the hard working American public.

Lisa Lindell said...

Dr. Kirsch, I've seen you comment on Maggie's blog from time to time. I have a media request from Hearst newspapers and I thought of you. I apologize for posting it here, I can't figure out how to email you.
The staff at DeadByMistake would like to hear from hospital employees who believe they have experienced retribution for reporting medical errors. Just click on the button "contact us" on the red bar at the top of our website. http://blogs.chron.com/deadbymistake/2009/11/restribution_against_patientsa.html

Lisa Lindell said...

I've read this thread and will comment I generally agree with most of the posters. There's no justice in the court room, it's not that easy to bring or prove a malpractice suit, "frivolous" med mal lawsuits with "jackpot judgements" are more media hype than fact. And finally, using your examples of certain employees being exempt from lawsuits, are those people working in occupations were mistakes lead to death? I also agree, the medical profession in general has done a poor job policing themselves, there are many who practice negligent care with no accounatability. Dr. Kirsch, how many times have you been sued by a patient? DISCLAIMER we had a terrible hospital experience and we never sued anybody, never even hinted at it.

Sensitive Jerk said...

>>>Fourteen years in the court reporter's chair taught me one thing: there is no justice in the Justice System. Just like doctors, and all us professionals, everyone involved is just a human being, and sometimes everybody gets it wrong. BUT more often than not, I saw things turn out as they should.<<<

How can it be that there is "NO justice in the Justice System" and that "more often than not, (you) saw things turn out as they should?"

>>>The same Conservatives who say government can't do anything right and should stop imposing unnessary(sic) and arbitrary regulations now want government to intervene in the court system and overrule the judgement of an experienced judge and 12 citizens chosen by two private industry lawyers.<<<

The courts are part of the government and the rules for courts are designed by another element of said government. Remember? Executive, Legislative, Judicial? It's how things like maximum/minimum sentences are set. Tort caps aren't an especially weird idea. And micromanaging the judiciary is something that the legislature has to do, because (unlike with private concerns) courts have a true monopoly as well as the keys to prison, etc.

Brian said...

Hey, Leisure Guy!

How does one distinguish the erroneous from the negligent?

Anonymous said...

Tort caps aren't a "weird" idea. They're an unfair idea. They're an odd concept for a "conservative" to support though. Although I realize the definition of conservative has become pretty loose.

And erroneous and negligent are not mutually exclusive findings.

Evinx said...

Anon 111209 8:29
Many conservatives, like myself, are against caps. But that does not mean we do not think tort reform is not necessary. It is.

There are several proposals for tort reform that have nothing to do with caps. Specialized courts (like landlord/tenant, traffic, etc) with judges who become more proficient with medmal (remember it is not simply judges but their clerks who often do the heavy lifting).
Best practices recommendations from panels of medical proficient individs, and other ideas.

Junk science a la John Edwards, should not have a place in the courtroom.

BTW, we should be discussing issues and not profiling views based on labels like conservatives, liberals, etc.

Michael Heilmann said...

As a lawyer practicing for a long time, I can say with certainty that no doctor that I have ever sued liked it. Doctors are not trained to admit errors. Yet they are all human and will make mistakes in their professional lives; lots of them. In my view, most folks would never see a lawyer if doctors were more forthright in their explanation of their limitations. When you fall off of a motorcycle at 60 miles an hour, you are simply not going to be "good as new", yet orthopedic surgeons have actually made that claim to folks. It is in my view, a function of time. I recently sued a doctor who admitted to seeing 60 patients in one day. Does he really think he is rendering quality care at that patient volume? He feels that it is justified, because he is under cost pressures and the only bar he can move is patient numbers. Well, my client had cancer and he missed it. We are now spending thousands of dollars litigating a case that should be settled. All Medical malpractice cases are "defensible", even a baby dropped on his head is defensible. Those little suckers are slippery. The medical profession can kill all the lawyers and it will reduce the cost of medical care about 1%. Medical Fraud costs us about 16%. Doctors don’t see ordering duplicate x-rays that were just done down the street as medical fraud. My own doctor said his office has a policy of not using other doctor's x-rays. The fact that he could bill for those unneeded x-rays never crossed his mind. Medical Malpractice is a fact of life. Auto collisions are a fact of driving. Folks are on cell phones and hit the rear end of the car in front of them. Doctors have a bad day and the bone saw slips and almost cuts off the adjacent toe and the doctor hides the fact from the patient instead of admitting the error. This is the fundamental problem. I teach my kids to admit their mistakes. It is too bad that doctors are not taught the same thing you teach kids in kindergarten isn't it? I have represented plenty of doctors who have been victims of medical malpractice and they always seem surprised that it could happen to them. Physician heal thyself.

Anonymous said...

" But that does not mean we do not think tort reform is not necessary. It is."

Conclusory statements based on no evidence are easy to make.

"Specialized courts (like landlord/tenant, traffic, etc) with judges who become more proficient with medmal (remember it is not simply judges but their clerks who often do the heavy lifting)."

Every one of those proposals, to the extent they exist, include caps. Because caps are the point for tort "reformers". There are no "specialized" courts like you describe. You can get a jury with a traffic ticket. You can get a jury with a landlord tenant dispute.

And before you accuse Edwards of "junk science", don't you think you ought to at least see the evidence in the cases he won? Or are the underlying facts no longer necessary to reaching conclusions?

Michael Kirsch, M.D. said...

Good comments all. I don’t think that caps are ideal as they deny some deserving individuals from compensation they deserve. Nevertheless, I supported them in Ohio as there was no other remedy or relief available to the medical profession. I witnessed physicians I knew retiring early or leaving the state. With regard to physicians admitting error, this is more complicated because admission of error, while morally imperative, may be the plaintiff attorney’s magic bullet. We should not have to face a moral-legal conflict of interest. Would the lawyer commenter support making such admissions of error inadmissible in court, similar to ‘apology laws’ which have been passed in some states?

Anonymous said...

Caps changed nothing in Ohio. The claim of doctors leaving are anecdotal at best. After all, where are they going? California, the caps Mecca? And now all the sudden they're staying in Ohio because the poor they treat are less likely to be fairly compensated?

You screwed some seriously injured people so your insurer could save some money. That's all caps do. All they've ever done in 30 years of corporate America pushing for them.

Evinx said...

Anon
You jump to way too many conclusions based on nothing.

No one suggested specialized courts do away with jury trails. Where did I say that? The actual fact is 95% of lawsuits are settled. This generates a legal culture to sue to generate a settlement. Many are frivoulous but defending them is expensive + very financially wasteful (except to lawyers) + time consuming. Jurists well knowledgeable is this area would tend to eliminate the frivoulous + allow the genuine medmal to proceed.

No one suggested caps are the ultimate goal of all tort reform. Where did I (or anyone) say that? BTW, Rep Tom Price DID introduce exactly this type of legislation in the House but Pelosi made sure it went nowhere.

And you know that I did not read about Edwards' cases just how? Another assumption on your part (and erroneous I might add).

Anon - You would make a very biased juror.

Anonymous said...

Evinx, why would we create a whole other court system for just a few hundred cases a year in each state, and even fewer than that tried? How many counties have more than 5 malpractice cases a year tried in this country? And how exactly would you train judges on the vast spectrum of medical issues that might come before them? More importantly, why for that few cases.

If you're not eliminating a jury trial, what is the point of having the judge get additional training? He's not the finder of fact.

Caps may not be the goal of literally every tort reformer, but it is the centerpiece of every serious legislative effort.

As for Edwards cases - which ones did you review the evidence in?

As for me being a biased juror, if the issue at trial is whether tort reform is just, or whether caps are needed, you are correct. I would be struck by the corporate proponents of caps.

Michael Kirsch, M.D. said...

Anon is correct that caps are the major element of tort reform efforts. Physicians support them because there is no other relief available to us. I would vote to abandon them if there existed a robust mechanism to screen out innocent physicians at the outset, rather then trapping us in the system for months or years. I have been drawn into the legal arena several times and was innocent in every case. Sure, I was dismissed every time, but it took months or even years before I was released. In many cases, even a cursory review of the facts can establish that a physician should not be a defendant in a particular case. I don't accept that a physician's innocence cannot be established until the process is underway with discovery, etc. While this us sometimes true, in many cases physicians are routinely and unfairly ensared by the system.

americancentrist said...

The problem with studies like "The Medical Malpractice Myth" is that they do not - and can not- measure the cost of defensive medicine. And I have to wonder why doctors must pay such high malpractive insurance premiums if the threat of litigation is such a minor matter as some here claim. I for one would trade my right to sue for pain and suffering in exchange for lower insurance premiums and a good system for policing bad doctors. As a nation we are spending 1/6 of our GDP on health. How much is too much? 1/5? I think with the current legislation before Congress we are already on our way there. See my piece at www.centermovement.org

Thanks for your excellent blog and discussion.

Anonymous said...

" Physicians support them because there is no other relief available to us."

Nonsense. Caps aren't "relief". They don't lower rates, they don't increase access, they do nothing other than give the insurers protection against those harmed the worst by negligence.

"In many cases, even a cursory review of the facts can establish that a physician should not be a defendant in a particular case. I don't accept that a physician's innocence cannot be established until the process is underway with discovery, etc. "

Really? How many cases? You saying you don't accept something, particularly in an arena where you've never done the work, doesn't mean much. Although, you could easily offer to submit to pre-suit depositions and/or advocate lengthening the statute of limitations.

Yet you don't. What you have supported is simply arbitrarily capping the damages of those injured the worst. An act that doesn't help you much, but does hurt those without economic damages significantly, like kids and the elderly.

Anonymous said...

"And I have to wonder why doctors must pay such high malpractive insurance premiums if the threat of litigation is such a minor matter as some here claim."

How high are their premiums, and what do you think they should be?

What is the actual threat to a physician from litigation? How often do they lose all their assets? How likely are they to get sued? How likely are they to get a judgment against you? Do you know? I doubt it since they don't even know.

"I for one would trade my right to sue for pain and suffering in exchange for lower insurance premiums and a good system for policing bad doctors."

Lower insurance premiums for who? Many states have capped non-economic damages at $250,000 with no discernible effect on the cost of health care, and certainly no effect on the cost of the consumers' health insurance. Why would even more make a difference. Particularly when the health insurers right of subrogation often results in it getting paid back out of a malpractice judgment.

Anar said...

Question I am left with after reading all these posts - has there ever been any hard evidence that caps provided ANY benefit to physicians? Have they lowered insurance premiums?

If not, then why is there a huge "rush" by physicians to the state of Texas that has 250K cap on payouts?

Anar said...

FYI - to Anon:
" There is no "tort system". There's a civil justice system, and a tort is merely a description of a particular cause of action in that system. "

From "Public Health Law" by Lawrence O. Gostin Page 183 "As explained above, the Tort System is composed of a series of related doctrines that impose liability on persons, businesses, or governments whose conduct causes injury or disease..."

Michael Kirsch, M.D. said...

While not scientific evidence, steadily rising medical malpractice premiums in Ohio cooled off after caps were judged by our Supreme Court to be constitutional. This was the only new variable and I credit it with the cost reductions in insurance premiums. Prior to this, physicians were leaving practice and leaving the state.

LeisureGuy said...

Still would love to read here your review of the book "The Medical Malpractice Myth". I'm just sayin'.

Aaron said...

>>> have been drawn into the legal arena several times and was innocent in every case. Sure, I was dismissed every time, but it took months or even years before I was released. In many cases, even a cursory review of the facts can establish that a physician should not be a defendant in a particular case. I don't accept that a physician's innocence cannot be established until the process is underway with discovery, etc. <<<

You are describing one of the "benefits" to doctors of tort reform. When a state eliminates joint and several liability, removes the obligation of defendants to implead parties they blame for the injury to the plaintiff, and allow the "empty chair defense" - the claim that the guy who wasn't sued was the one who caused the injury - plaintiffs' lawyers are forced to name everybody who could have conceivably caused the injury or risk ending up having the court or jury decide that the one guy they didn't sue was the only person who should be held liable. Ohio passed that rule at the behest of your insurance company lobbyists, and the rest is history.

>>> While not scientific evidence, steadily rising medical malpractice premiums in Ohio cooled off after caps were judged by our Supreme Court to be constitutional. This was the only new variable and I credit it with the cost reductions in insurance premiums. <<<

You seem to be making a common mistake by assuming that what's good for a medical malpractice insurance company with what's good for doctors. Insurance companies want to simplify their own lives and increase their own profits. Any benefit to you is incidental.

It's good that you understand that correlation is not causation. But then you turn around and argue that it is. You should look up some insurance industry / lobbyist statements on the connection - or should I say, lack thereof - Sherman Joyce, ATRA: "We wouldn’t tell you or anyone that the reason to pass tort reform would be to reduce insurance rates"; Victor Schwartz, ATRA: "[M]any tort reform advocates do not contend that restricting litigation will lower insurancerates, and ‘I’ve never said that in 30 years.'" The biggest indicator of whether or not your premiums will go up is whether or not your insurance company's investments are profitable - when they lose money in the market, they raise your rates. Insurance companies took a bath in the bond market between 1998 and 2001, contributing to big increases in premiums preceding the 2003 Ohio Supreme Court ruling. http://tinyurl.com/malpins

Damages caps help insurance company actuaries project payouts. Beyond that they do little beyond ensuring that the most severely injured victims of malpractice are undercompensated.

Michael Kirsch, M.D. said...

Aaron, thank you for your thoughtful comment.

You stated: "plaintiffs' lawyers are forced to name everybody who could have conceivably caused the injury or risk ending up having the court or jury decide that the one guy they didn't sue was the only person who should be held liable." Do you think this is fair? I have written several posts pointing out unfair and abusive aspects of the medical liability system. Do you agree with any of these views? You will also note that many of my posts point out flaws in physician behavior and in the health care system. While I may be wrong, I am not an idealogue. One item that clearly divides us, from having looked at your blog, is Charles Krauthammer. I think he is superb.

Michael Kirsch, M.D. said...

Here's how the Iowa case regarding prosecutorial misconduct ended up. http://bit.ly/8XSTrk

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