Jackson Free Press

We dared to write about the complicated "Hoodwinked" myths that have sprung up around the issue of tort reform nearly three years ago, as propagated locally by The Clarion-Ledger's "jackpot justice" obsession. We told you then that their "research" was based more on rhetoric than fact. Here's a new piece in Slate that explores this myth:

The Republican answer to runaway health-care spending is to cap jury awards in medical malpractice suits. For the fifth time in four years, Senate Majority Leader Bill Frist tried and failed to cap awards at $250,000 during his self-proclaimed "Health Care Week" in May. But this time, the Democrats put a better idea on the table.

Sens. Hillary Clinton and Barack Obama also want to save on health care. But rather than capping jury awards, they hope to cut the number of medical malpractice cases by reducing medical errors, as they explain in an article in the New England Journal of Medicine. In other words, to the Republicans, suits and payouts are the ill. To the Democrats, the problem is a slew of medical injuries of which the suits are a symptom. The latest evidence shows the Democrats' diagnosis to be right.

The best attempt to synthesize the academic literature on medical malpractice is Tom Baker's The Medical Malpractice Myth, published last November. Baker, a law professor at the University of Connecticut who studies insurance, argues that the hype about medical malpractice suits is "urban legend mixed with the occasional true story, supported by selective references to academic studies." After all, including legal fees, insurance costs, and payouts, the cost of the suits comes to less than one-half of 1 percent of health-care spending. If anything, there are fewer lawsuits than would be expected, and far more injuries than we usually imagine.

Previous Commentsshow

Something is amiss somewhere here. I've heard direct testimony from doctors here in the state who have moved out bcause of the litigious climate here. What gives? I guess I'd have to do some research on this to see what's going on. But, honestly, I don't have the time or the desire to pursue this very far. So I'll just have to be ignorant and glean what I can from articles such as this. I had an idea that I thought might work, if we really wanted tort reform. We shouldn't cap the awards to the victims, we should cap the amount that the attorneys can earn - either as a percentage fo the award or as a hard number, or both. This wouldn't stifle legitimate lawsuits, but might discourage more frivolous suits, or at least discourage attorneys from pursuing ridiculous awards. Anyway, just a thought. See, I'm not always a raging capitalist.

GLB

Jul 12 2006

The most important research to look at, GLB, is the congressional GAO report that exposes these myths for what they are. Certainly, malpractice rates are high—but it's not for all the reasons that the U.S. Chamber provides. And just the fact that you haven't heard the other side of the issue says something about the terrible media coverage, especially in The Clarion-Ledger on this issue—a problem the GAO also took on. See all the links under my "Hoodwinked" story, and don't miss the part where the Gannett News Service reported on the myths of this issue—but the Gannett newspaper, The Clarion-Ledger, did not. A big scam has been perpetuated on our state on this issue—primarily, it seems, because the issue is so complicated, and most reporters don't even seem to understand it. Of course, they could try harder.

DonnaLadd

Jul 12 2006

my solution for tort reform is to abolish the caps. but then insitute a 50% or so tax on punitive damages. The tortfeasor is thus punished, the plaintiff is not unjustly enriched, he has been made whole in the eyes of the law already, and the state gets revenue.

Kingfish

Jul 12 2006

And for an encore, Jimmy, you could light your guitar on fire. I am an admitted ignorant gomer on this issue, but so far I think I like my idea better than the left-handed guitar god's idea. But what do I know? I'm gonna shut up now. Say hi to Elvis and Janis for me, Jimmy.

GLB

Jul 12 2006

Oh, and Ladd. Thanks a bunch for the info. I know where to look to begin researching, if I ever find time and energy to do that. Thanks for taking the time and energy to inform me.

GLB

Jul 12 2006

No problem. ;-) Those links are really a good place to start for anyone who wants to understand this whole picture. I believe strongly that the doctors are some of the biggest victims in all this. They've been used mightily as political pawns.

DonnaLadd

Jul 12 2006

sorry but I also believe in the freedom of contract and the free market and that is between the client and the lawyer. Just like I don't think gummint should tell realtors, doctors, gas retailers what they can/can not charge, neither should they do so with lawyers.

Kingfish

Jul 12 2006

I'm with you there. Either the free market exists for everyone, or it doesn't. That's part of the scam here: The U.S. Chamber wants to use both federal and state government in order to control the market for certain parts of industry. That is wrong, and it also hurts consumers mightily, not to mention lessens the deterrent value of civil lawsuits to force industry, medical and otherwise, to be safer. However, I do believe there can and should be certain protections for citizens and consumers. But there sure shouldn't be laws to try to keep certain industries bullet-proof from financial burden and not others. That simply defies logic. And there is no thing more telling than the fact that so many tort-reformers resister any attempts to hold the medical industry to higher standards and ferret out the actual bad doctors, who are spoiling it for everyone. Simply remarkable.

DonnaLadd

Jul 12 2006

That is why I said tax the punitive damages. If say a manufacturer makes defective brakes and knowingly doesn't recall or fix the problem, then he is still punished. However, the tax discourages the more frivoulous lawsuits. But something has to be done when the cost of liability has whittled down the number of manufacturers for smallpox vaccine to less than 3 or every drug manufacturere is seen as a target. biochemistry is complex and it is simply ridiculous to expect a drug to have no side effects on every person who takes it. A tax on punitives doesn't affect the plaintiff's recovery and still punishes the wrongdoer.

Kingfish

Jul 12 2006

I don't know what I think of that, Jimmy. Will have to ponder.

DonnaLadd

Jul 12 2006

Just some questions. I still don't understand all the issues very well, but I'm respnding to what I am reading here. Hendrix, wouldn't the tax only be a deterrent if it was a prgressive tax? And doesn't that amount to essentially a limit on damages? Also, if it is wrong to limit the amount that an attorney can earn, why is it o.k. to impose a prohibitive tax on earnings that are considered "excessive"? Also, why do we think that the money is better placed in the hands of government (via a tax) than in the hands of those involved in the lawsuit,whether it be plaintiffs, defendants , or attorneys.?

GLB

Jul 12 2006

I don't think it is better in the hands of the government. HOWEVER, punitive damages are to punish the tortfeasor. The plaintiff has already been compensated. Do I think the plaintiff should walk out with a nice 5 million dollar verdict after his pain, suffering, injuries, future earnings, loss, etc compensation have been awarded and the law has made him whole? no I don't. Do I think a tortfeasor should be punished? Yes. I say tax it. The government fines people all the time, just in this case it is done through the judicial system more directly than the legislature. The purpose of the tort system is to make the injured party whole and punish wrongdoers, not enrich someone who has been made whole. The punitive damage will still deter wrongdoing but a lawyer is not going to try to take frivolous claims hoping to inflame a jury as much either with a tax in place.

Kingfish

Jul 12 2006

O.k. Hendrix. It sounds like your are trying to accomplish the same thing I was with the limits on lawyer's fees. I'm really not smart enough to know which would be more effective, but I think I do get your point.

GLB

Jul 12 2006

actually I am but I am more comfortable doing it through a tax on the punitive damage then I am on telling someone what he can make. NOW if you are a typical tort reformer meaning conservative or Republican, that means you adhere to free market and freedom of contract principles so putting a limit on lawyer fees is at odds with that philosophy.

Kingfish

Jul 12 2006

I guess I'm not a typical tort reformer. I think philosophy, logic, and (in some cases) religion require rigor. Politics and economics are just practical tools to try to implement goals rooted in philosophical or religious based ethical principles. As such, I think they can be much sloppier. So although I am in some instances conservative and tend to vote Republican, I don't worry about adhering to conservative principles or Repulican tickets. I try to go with what I think best implements my ethical goals.

GLB

Jul 12 2006