Med-mal on Andrew Sullivan’s blog

by Walter Olson on August 21, 2009

Longtime reader P.W. writes:

I’ve been biting my fist while I read the recent series of guest posts on tort reform and medicine on andrewsullivan.com, such as this one. Lots of readers breezily asserting that there’s no problem, pretty much a fact-free debate. I’ve emailed them myself, but no luck so far….

P.S. More or less relatedly, Democratic strategist Bob Beckel sees medical liability reform as the possible pivot of a health care deal [Real Clear Politics]

P.P.S. Sullivan’s guestblogger Patrick Appel has now posted good emails from one reader dismantling some of the trial bar talking points that had figured prominently in earlier posts:

Easily disprovable lie #1: Texas malpractice insurance rates have declined every year since tort reform was enacted. Here’s a link to TMLT, the largest insurer in Texas…

[#3:] …the inflation-adjusted decrease in overall indemnity payments is due precisely to tort reform, primarily in the country’s largest economy, California, where MICRA was established in 1974. In non-tort reform states, indemnity payments have steadily increased. In Illinois, which only adopted tort reform in 2007, the average (pdf, page 15) indemnity payment increased from $70,000 in 1980 to $630,000 in 2008. If you adjust for inflation, those 1980 dollars would only be $182,943.81 in 2009. Clearly, this is not a decrease. …

{ 1 trackback }

PointOfLaw Forum
08.21.09 at 11:22 am

{ 16 comments }

1 Jerry 08.21.09 at 12:02 pm

What I would really like to see is a combination of tort reform and national license revocation. Right now high damage awards are an poor way of punishing bad doctors.

Instead, what should happen is that we have a cap on punitive med mal damages. If a doctor gets hit with the maximum (capped) award more than once, their medical license is revoked, so that they cannot practice medicine anywhere in the US. That would focus things on what we need, keeping bad doctors away from patients.

2 Deoxy 08.21.09 at 12:04 pm

First, you need a system that only awards damages against bad doctors. Right now, yes, bad doctors get hit a little more, but good doctors get hit, too. Either that, or there are entire practice specialties with no good doctors in them (obstetrics, for a obvious example).

3 Jerry 08.21.09 at 12:20 pm

A systems that awards damages against bad doctors sounds like a good idea, but you need to be more specific. Right now we have a system that is broken, but still functions at some level. Before we throw that system away, we need to figure out what will replace it and get those bad doctors away from patients.

4 Jerry 08.21.09 at 12:26 pm

Does anyone have any data about the percentage of med mal suits whose awards are above the common cap proposals? Having a bit of data would be enlightening.

5 PhilG 08.21.09 at 1:19 pm

When medical malpractice insurance rates are above $100,00 per year per doctor for some specialties it is hard to see how medical malpractice lawsuits don’t extremely impact doctor’s bills.

6 GR 08.21.09 at 5:30 pm

I cringe when I hear that malpractice suits are a tool improve the quality of care. Tort litigation is much more about assessing blame (and collecting money) than it is about process improvement. Let’s not confuse the adversarial process with objective assessment and recommendations. Unless, of course, you’re trying to justify it in a debate.

7 PhilG 08.22.09 at 6:47 am

The article that this item links to says: “All the evidence available shows that the liability ‘crisis’ is a myth. Malpractice payments account for less than 1% of the nation’s health care costs each year.” That’s an outrageous lie. The cost of malpractice payments is enormous.
Expanding a bit on what I said earlier about malpractice insurance costing over $100,000 a year for some specialties, let’s take a look at what that translates into in costs for the patient. Let’s assume an obstetrician pays only $100,000 a year for malpractice insurance (the cost of malpractice insurance for an obstetrician is actually substantially much more than that – but I am being very conservative here). Let’s also assume that the doctor delivers a baby a day, for 50 weeks a year working 5 days a week. so that is 250 baby deliveries a year. So that conservatively comes to a cost of $400 per baby.
But wait – that is just for the cost to the doctor of malpractice insurance. The hospital must also purchase malpractice insurance and in obstetrical malpractice cases the hospital often ends up paying a similar amount as the doctor. So let’s assume the hospital is spending only half as much as the obstetrician on malpractice insurance. So that means the hospital is paying at least another $200 itself for malpractice insurance for every baby delivered by the doctor (and that too is quite conservative). So we see that each mother having a baby is paying more than $600 just to cover the cost of malpractice insurance to deliver that baby! That’s an example of the real cost of malpractice insurance to patients.

8 PhilG 08.22.09 at 7:15 am

But wait again – we are not finished with that $600 in direct costs per baby delivered that I estimated for malpractice insurance above. There are the indirect costs such as unnecessary caesarians done to fend off the lawyers. And when you add in the indirect costs too, the actual cost to the mothers for each baby delivered for malpractice insurance and to fend off the lawyers is probably over $1,000 per baby.

9 Mare Nostrum 08.22.09 at 9:35 am

Mostly lost in the discussion of medical malpractice is the role insurance companies play in boosting malpractice premiums. Over 20 years ago, when the cost of med mal insurance started to first skyrocket, it turned out the reason one carrier raised its rates much higher, Argonaut Insurance Company of California, was that investment income from premium reserves had dropped sharply after the 1987 Stock Market crash. To make up for losses on investments, Argonaut falsely claimed that they had to pay out more in malpractice awards. Most state insurance departments (outside of California and Arkansas) can be relied on to accept without question the lies of med mal insurance company executives and rubber stamp almost all the premium increases requested.

10 Bumper 08.22.09 at 12:34 pm

True medical malpractice is and should be treated as a criminal event. Showing up for surgery drunk, coked up, cutting off the wrong leg, etc. Go to jail. The rest comes under “God’s will and $hit happens.”

But nothing we write here will change the “dash for the cash” legal system. So how about we change the system, lawyers don’t believe peer review works for the medical system, so why should we believe that it works for the legal system. Let’s have doctors handle legal malpractice claims. Those doctors who have been sued act as the plaintiff counsel and all those medical “experts” can be the defense’s counsel.

Squid pro scrotum.

11 William Nuesslein 08.24.09 at 9:00 am

Jerry,

People want to punish and get rid of bad doctors and bad teachers. But how can we distinguish the bad from the good? Clearly juries are incompetent in this regard with respect to doctors. Jurors, in general, have a hard time with random happenings, and they credit junk science to such an extent that the Supreme Court issued Daubert to restrict the garbage that can be presented to them. Even the Supreme Court itself can be so carried away with emphaty that it will issue an absurd Levine decision.

Variation in teacher quality has almost no effect on student performance. Smart kids tend do well provided the curriculum is covered, and dumb kids are dumb kids. Schooling does not make kids smart. Abraham Lincoln and Andrew Johnson, the President and Vice President elected in 1864, had a total of one year of schooling between them. What is going on now in some schools is that intensive test prep is getting higher scores through stimulus response training.

PhilG did a great job in showing how Med Malpractice insurance affects the cost of deliveries. But he leaves out the cost of allowing underage women smokers bear very premature babies who cost a million bucks in medical care, and often have significant defects. Instead of paying John Edwards large amounts of money, we should increase sex education and health services through Planned Parenthood.

12 John Rohan 08.24.09 at 4:01 pm

To PhilG:

That 1% figure is popular among trial lawyers – it’s basically calculated by the actual amounts awarded by juries – totally ignoring the more numerous number of settlements, as well as related costs (such as defensive medicine). It’s been debunked here on Overlawyered in the past.

As a side note, I wonder why Overlawyered even links to Andrew Sullivan in the right-hand column. He is not a law expert, nor does he usually even discuss tort issues. Essentially, he’s just a popular writer but with no special expertise on anything. And I’m not sure if he has ever linked to Overlawyered. He certainly doesn’t need the traffic.

13 nevins 08.24.09 at 5:01 pm

Problem with the good-doc, bad-doc dichotomy proposed by Deoxy and Jerry is in determining just how one can recognize the two.
Measuring the performance of an individual in a complex system by looking at outcomes is notoriously prone to hind-sight bias. Many outcomes have known predictable rates that occur without any bad actors helping things along the way. So when a bad result comes along as they inevitably do, how does one discern the causative factor?
Anesthesiology has had some fairly aggressive systematic attempts to define causation and risk factor for rare but serious events. These cases are abstracted (written in standardized descriptions with all usual information that can be obtained from medical charts, depositions, and any other sources available) and reviewed by a panel of trained reviewers who’s job it is to determine causality and decide whether medical practice adhered to the applicable standards of care.
But, as this project went along, a new hypothesis was tested. Some of the cases reviewed were altered to see how the judgement of the trained expert and unbiased reviewers was. On half of the cases they reviewed, the severity of outcome was changed to be either worse, or better than it originally was. These reviewers, not knowing that some of the cases were a test of their consistency, then proceeded to make their judgements as to whether care met medical standards.
The strongest predictor of whether the reviewer would judge care to be substandard was whether the outcome for the patient in the story was poor. So reviewers could read a case with the exact same medical actions and conclude that those actions were fine if the patient was OK, but not fine if the patient was not.
These reviewers had all the incentives to be unbiased, had decades of expertise in anesthesia practice, had hundreds of hours of practice in judging these cases fairly, and the best they could do was to act like a jury of lay persons associating outcome with causality.
Because of this, it is certain that the courts will be ineffective at finding bad-docs; they can only find bad outcomes and use those to nail someone with money to a cross. Sometimes that is a bad-doc, but more often than not given the odds, it is someone doing the right thing who gets run over by a bad result.

The only system that has a chance of working is to get bad folk out of medicine by strengthening peer review. We know who the docs are to whom we would not send our family; there is just no good due process means by which we can fix these guys or get them out. (because they will get lawyered up and make our lives hell for starters)

14 A.W. 08.27.09 at 9:37 am

who’s andrew sullivan. /sarcasm

Seriously, stopped caring what he said years ago. tell him to go back to proving the sarah palin conspiracies to cover up who really mothered her child.

15 Brad Templeman 08.28.09 at 10:57 am

That’s a pretty good piece by Beckel, it seems like he gets it a little bit. I don’t think it will change the health care debate in Washington as much as he thinks. Tort reform goes together with what the health reformers want, cheaper care with fewer unnecessary tests, and its hard to see how you get there without geniune tort reform.

16 Walter Olson 08.29.09 at 9:15 am

John Rohan: >I wonder why Overlawyered even links to Andrew Sullivan in the right-hand column. He is not a law expert, nor does he usually even discuss tort issues. … And I’m not sure if he has ever linked to Overlawyered.

You’ll notice that the “Other Blogs” section of the right-hand column includes dozens of blogs that are not mostly about law (let alone tort issues). Nothing new there. And yes, for what it’s worth, Sullivan has linked to Overlawyered a fair bit over the years.

Comments on this entry are closed.