Tort reform and half-assed conservatives

I’ve been waiting to take a good shot at conservatives and one just came along in today’s Wall Street Journal. The opinion piece is written by Philip K. Howard, founder of Common Good. His group claims to support common sense reforms of the legal system. In today’s article he puts forward some lame ideas for reforming medical malpractice cases. I aim to shred his nonsense here.

Before I start on this, please note that although I am a plaintiff’s personal injury lawyer, I do support significant tort reform. I’ll explain my position below, but you can see a brief version on this site at my tort reform proposal page.

My first gripe is a simple and direct one. Why do all these people think medical malpractice is something special? Why should doctors and hospitals get more protection when they’re sued than I get when I get sued for how I drive my car, or for how I practice law for that matter? He complains about malpractice suits causing unnecessary defensive medicine, yet there appears to be no major concern in our society about people driving too carefully or lawyers being too careful with their client’s cases.

I’ve been working in personal injury law for over 10 years. There are far more car accident cases than malpractice cases, perhaps 100 times as many. And while the typical malpractice case may be worth more than the typical car accident case, there are plenty of million dollar car accident cases too. If malpractice cases are such a problem for the healthcare industry, then car accident cases are surely a bigger problem for the rest of us. Maybe there are a few doctors stuck with 5-figure or 6-figure insurance premiums. But they have a lot of revenue from which to pay that. Meanwhile there are plenty of people making less than $50K who are paying $2K or more for car insurance.

Howard whines about the malpractice costs at his number of $28 billion a year. I did some very quick research and found that State Farm Insurance has $60 billion a year in revenue, with Allstate at $35 billion. Add $15B for Progressive, $10B for GEICO, St. Paul/Travelers at $24B, The Hartford at $27B, and you start to get the idea. Some of that is life insurance, but the bulk of it is what’s known as property/casualty insurance. One source I read put the total premiums at over $400 billion a year. So let’s not pretend that there’s a medical malpractice crisis.

Howard’s solution involves creating a system of “expert health courts.” He mentions fears of erratic jury decisions in medical malpractice cases. Why isn’t this a problem in other types of cases? He would replace juries with “specially trained administrative judges.” So here’s another conservative dispensing with another constitutional right – here the Seventh Amendment.

I agree that juries can be erratic, but judges can be too. Howard points to bankruptcy courts, tax courts, and patent courts as examples of where special courts without juries work well. I frankly disagree about bankruptcy courts and have heard plenty of criticism about the patent system. On the plus side I know nothing about tax courts and hope to keep it that way. I know a lot of judges, and if I got to pick my judge, I might be happy with a judge system. But there are some judges I wouldn’t want, and I don’t his system would let people pick their judge.

Howard’s proposed system would include a schedule for pain and suffering damages depending on the injury. I can’t wait to hear who gets to set up the schedule. I don’t normally do med-mal cases, but I’ve got a couple clients who were raped in the health care system, one by her doctor (his license was revoked) and another by a nursing home aide with a long criminal record. Neither of my clients have substantial or long-term physical injuries. What do they get under this schedule?

Another bit of misinformation I noticed was his reference to lawyers “taking up to 40% of the award.” In New York, which is supposedly a lawyer-friendly state, med-mal fees are much lower than that, as low as 10% for larger awards. Of course, he blames lawyers for any opposition to reform. Apparently Consumers Union and PIRG have fallen prey to the evil cabal of personal injury lawyers.

I do support tort reform, but it should be for more than just doctors, and much simpler than creating specialized courts and tossing constitutional rights out the window.

We should eliminate pain and suffering damages from cases of “ordinary negligence.” The vast majority of personal injury cases involve ordinary negligence — going 60 mph in a 55 zone, not coming to a complete stop at a stop sign, etc. And the vast majority are also about pain and suffering, with other damages being mostly unimportant. Eliminate pain and suffering damages for ordinary negligence cases and you’ll knock out 90% of the lawsuits. Insurance premiums will also drop dramatically, and not just for wealthy surgeons.

I’m sure the trial lawyers would oppose this approach. So would insurance companies, who would see their revenues plummet. But if we deliver the message to consumers that their insurance rates will drop dramatically, it just might succeed.

Then again, I gave a talk about this idea to a group of educated consumers in Schenectady a few years ago. They didn’t like it. Many people want their lotto ticket in case they get hurt.

10 comments to Tort reform and half-assed conservatives

  • I enjoyed your posting about medical malpractice reforms, as I, too, deplore the hypocrisy of those conservatives who want government to get involved in restricting the rights of malpractice victims. Phillip Howard is a former big-firm defense lawyer, whose “Institute” is financed by insurance companies. If you get a chance, check out my website, http://www.StopMedicalError.com. Michael Townes Watson, author of America’s Tunnel Vision–How Insurance Companies’ Propaganda Is Corrupting Medicine and Law,.

  • I enjoyed reading your post. You make some good points. As far as health courts are concerned, they scare me too. I know that hospital review boards, which are staffed by our peers and similar in make up to a health court, are typically brutal on their fellow doctors. I’ll take my chances in front of a jury rather than 1,2, or even 3 judges, or worse yet, other doctors, thank you very much. Our current system might not be perfect, but sometimes the enemy of good is better.

  • You seem to be conveniently ignoring a few minor aspects of the matter. Like how the tort system is just as broken when it comes to car accidents — a drunk bastard runs a red light, kills his child in the back seat, and gets rewarded because a jury thinks the car manufacturer can afford it? Oh, please!

    Or like how medicine still is part art, and anyone who expects doctors to always come up with the right dx and the right treatment plan is a deluded fool or a greedy lawyer.

    Or like how even the perfect and correct treatment plan sometimes doesn’t help, as the patient’s immune system still has to bear the brunt of bacterial attacks, to name just one example.

    No, sir, Shakespeare got it right.

    Cheers,
    Felix.

  • Responding to Felix, the quote he refers to from Shakespeare (first thing we do is kill all the lawyers) was spoken by the villain. Apparently Shakespeare thought lawyers were an important defense against villainy.

    I don’t agree about the tort system being “broken.” The drunk father he refers to would be spending years in prison, and it would be very rare to win a case against a car manufacturer in such circumstances.

    As for his concerns about med-mal, I agree, so I don’t see why he thinks we disagree.

    I also dislike his reference to “greedy lawyers.” Why is it that everyone else is supposed to get minimum wage or better, but lawyers are supposed to work for free?

    There are plenty of greedy people and relatively selfless people in a variety of fields. Here I am advocating a position where I would make a lot less money, and yet still I’m a greedy lawyer – in the world of Felix.

  • Dear Albany Lawyer,

    thank you for your thoughtful reply, which I read with interest.

    You are, of course, right about the source of the Shakespeare quote — yet even Dick the Butcher may have found a small grain of truth.

    Jests aside, I am opposed to killing all the lawyers; but I do not see some of the more visible specimens of your professions as valuable members of society.

    Before I continue, allow me to note that I grew up (and lived for all but three of my forty-two years) in Europe. Obviously, I am used to vastly different traditions, and the three that stick out, to me, are the absence of the adversarial system, the presence of a strong loser-pays rule in civil actions, and the near-absence of speculative lawsuits created by the lawyers’ sharing in the spoils.

    The adversarial system may or may not work well, but at least as far as medical malpractice and other fields with scientific backgrounds are concerned, it is an utter failure. How else, sir, could a jury lend more credence to Mr. Edwards’ channeling a dead child than to actual evidence? How could the Ford Pinto be condemned as the least safe car in its class when that was factually wrong?

    A lack of loser-pays means that obnoxious pests can cause immense, even extortionate, efforts (and expenses) to be made by defendants. Loser-pays would serve as an excellent deterrent, and people in the European countries I lived in seem not to lack for access to the courts, as I was assured would be the case were a loser-pays rule to be introduced.

    Splitting of awards between lawyer and awardee is, forgive me, utterly and disgustingly vile. It turns a system created to provide justice into a lottery, where all of society pays for an overgrown court system that is being gamed — Lady Justice wears not a blindfold but a kerchief to soak up her bitter tears, if you ask me. The remedy? Let fees come out of awards … but limit them to reasonable hourly rates with detailed billing. (Where I grew up, such bills are subject to inspection and correction by the presiding judge, by the way, who limits them to the “usual and customary” amounts — I believe that is the proper term in English.)

    Coming from the general back to med-mal, I see:

    Humongous awards that bear no relation at all to reality;

    plaintiffs who, instead of showing gratitude that their crackhead relative underwent expensive and free attempts at resus (thank you, EMTALA!), think they can get rich — and are proven right;

    juries whose members have difficulty tying their shoelaces yet expect doctors to be miracle workers;

    and lawyers — yes, greedy ones — waiting to make a profit of it all. Or worse yet, instead of just waiting for an opportunity, they advertise for all those poor victims of whiplash after the latst fender-bender.

    Keeping Mr. Edwards in mind, would you disagree?

    And with _that_, we finally come to the core of your argument: You are, generously, proposing a system under which you would make far less money; and I cannot shake the impression that I am expected to be grateful for this.

    I am not, sir, not at all. The tort system is broken beyond the boundaries of med-mal, and it is broken beyond what a band-aid can repair. Not being completely insane, I must, of course, agree that, say, health courts would be an improvement over the current mess; my gripe is that your proposal does not go far enough.

    One last, minor, item: Drunk driver — has happened, in Florida, according to overlawyered.com; the defense was not allowed to introduce the driver’s inebriation into the evidence.

    I hope I did better, this time, and with less snarkiness, to explain my position; thank you for the opportunity to try.

    Cheers,
    Felix.

  • It’s nice to hear that Felix opposes killing “all the lawyers.” Unfortunately, if I read him correctly, he appears to be in favor of killing the more visible ones. Strangely he does not say much about killing the worst doctors.

    Felix is also guilty of small sample bias. Sure there have been a few cases where juries have been wrong. This will happen in any system. The vast majority of med-mal verdicts are for the doctors, and some of those are wrong too.

    Loser-pays is a strong deterrent to both good and bad cases. And since, as mentioned above, doctors win most of the cases, the rule favors doctors in general. I wonder if Felix favors loser-pays in criminal cases? Shouldn’t the defendant get his lawyer fees reimbursed if the jury finds him not guilty? And yet we hear nothing from Felix on this. Because Felix is a doctor who cares more about his own than he does about the plight of innocent criminal defendants. I’ve done many posts on criminal defense here and on my other blog, but that topic does not interest him.

    The splitting of awards does not create a lottery. It’s a lottery already. Unlike Felix, I want both doctors and lawyers to be free to make our own fee arrangements without government interference. Personal injury lawyer fees are already far more regulated than doctor fees. Nothing stops a doctor from charging an uninsured patient whatever he wants, other than the patient’s ability to pay. Personal injury fees are strictly regulated and enforced by the courts. If a lawyer violates the rules he can be disbarred. If a doctor charges too high of a fee his license does not get revoked.

    The disdain Felix shows for juries is far more vile than any problem with our legal system. I have not been thrilled with all my juries, but they take time out of their lives to help ensure that the rule of law prevails in our country. They are better educated than the average resident. Of course, I’ve seen many doctors who get called for jury duty try to get out of serving.

    Felix boldly states that my proposal does not go far enough, yet he offers no substantive analysis of that proposal. And I’m not asking anyone to be grateful for my position – I’m merely pointing out that it is against my own financial interest, and that might make it more credible than a doctor like Felix who has a financial interest in favor of his position. Dare I call him greedy?

    As for the drunk driver, the circumstances of the case would need better explanation. If he was rear-ended at a stoplight, the inebriation would be completely irrelevant to the question of fault and prejudicial as well. Or maybe the proof of intoxication was insufficient.

    Or maybe the judge actually made a mistake. It happens. The system isn’t perfect. I actually had the opposite case. My client hit a bicyclist and was sued. After he got out of the car, he threw a beer can into a nearby field. The officer found the can and my client admitted it was his. My client passed all field sobriety tests – he was sober. Despite this, the judge admitted the evidence that he tossed the beer can into the field. Highly prejudicial, and probative of nothing. The jury, despite this prejudicial evidence and their apparent idiocy in Felix’ eyes, found my client not negligent. Why? Because kids should not be slaloming the centerline on 55 mph highways. And because my client swerved to the right to avoid the kid once he saw him, and the kid turned into my client’s path.

  • Dear Albany Lawyer,

    permit me to clear up a few misunderstandings. You wrote, “I wonder if Felix favors loser-pays in criminal cases? Shouldn’t the defendant get his lawyer fees reimbursed if the jury finds him not guilty?”

    Answer: Yes. While criminal cases are slightly different (the state pays its own costs either way), the defendant is not penalised for proving his innocence. You will notice that there is a slight difference to systems in which a criminal complaint or a civil suit can completely break a person economically. (I assumed you would be at least remotely acquainted with Roman-law-based judicial systems in Central Europe; my error for assuming too much.)

    Doctors currently win 90% of med-mal cases. This is no accident, in my opinion. It happens because filing a suit is cheap enough that one big win pays for all the rest — and since those big wins depend less on science and facts than on perverting Justice, that is just fine with the plaintiff’s bar.

    Oh, and I am not a doctor. I am actually a computer programmer; the closest I ever came to doctors was as a patient — no friends, no relatives, not even acquaintances in the medical field. But don’t let that stop you from a good ad hominem attack (“Because Felix is a doctor who cares more about his own than he does about the plight of innocent criminal defendants”), even if it is wrong on every level.

    “Nothing stops a doctor from charging an uninsured patient whatever he wants, other than the patient’s ability to pay,” you continue. Correct — so, by the way, are lawyers where I come from. The loser-pays rule makes the loser pay the usual and customary fees of the other side, not whatever random numbers someone came up with; the rest is left to the discretion of the parties involved. (Note that this does not apply to criminal cases, and that variable fees such as percentages of potential awards are considered unethical.)

    “The disdain Felix shows for juries is far more vile than any problem with our legal system.”

    I do not disdain the concept of a jury — the system has worked well in England, after all, much better that the rather arbitrary proceedings that the Central European system imposed over centuries where judges were but enforcers of the rulers’ commands.

    The two places where the jury system fails the trust of those who seek justice are in the jury selection (you will know there are _books_ on how to select a friendly jury and get rid of the neutrals), and in specialties requiring a depth of knowledge that may take years to amass. I direct your attention once more to Mr. Edwards’s channeling of a little girl; would that have played so well n a special health court?

    To summarise: Juries in criminal proceedings — YES. It is too dangerous to let the state exert the ultimate authority unchecked; depriving someone of life or liberty should be decided by the sovereign, not by a functionary. Juries in civil proceedings — NO. They tend to see corporate entities as money-presses (how many jurors may have wanted to do some big company in the eye?), and you may have noticed that companies are as rare on jries as doctors. Small wonder how the fantasy numbers for swards arise.

    Oh, and your last paragraph is fascinating: “The jury, despite this prejudicial evidence and their apparent idiocy in Felix’ eyes, found my client not negligent.”

    So you find a case where the system actually does what it is supposed to do, and then trumpet that as the great wonder of our times? Oh dear. Oh dear.

    Cheers,
    Felix.

  • I am enjoying this conversation with Felix. I admit I was confused about the doctor thing — there was a comment from a urologist. I should stop BWF (blogging while fatigued).

    I’m not familiar with Roman law systems and don’t see why that matters. Nor do I understand in what form Felix supports loser-pays when a defendant is acquitted.

    Filing a med-mal suit may be cheap, but doing it properly and carrying through on it is very expensive. A lawyer can easily burn through $25K on a med-mal before trial, and $100K through trial is not unheard of. Meanwhile I can get a car accident case done in most cases for less than $5K, and often as little as $1K.

    It also appears that Felix thinks that juries are always wrong on the 10% where the plaintiff wins, and yet never wrong on the 90% where the plaintiff loses. But he’s not biased at all on this issue. I saw med-mal cases when I worked for a judge and I never saw the perversion of justice he describes. I saw lawyers presenting facts and expert witness testimony – by board-certified physicians.

    As for jury selection, the last time I checked both sides participate in that process. The jury selection process is perfectly fair in most cases, including med-mal.

    Apparently Felix has a problem with John Edwards. This apparently is really the root of his desire to reform the legal system. Just my view that the legal system should not be reformed by someone who doesn’t understand it and relies on anecdotes instead of an overall picture.

    As for juries’ view of companies, it’s irrelevant in med-mal – the doctor is the one getting sued. It may apply to hospital defendants, but not the doctors. The reality of this situation is that jurors like and respect doctors and will generally try to find a way to find them not negligent.

    In Felix’ health courts, we will lose our constitutional right to a jury trial and end up with his “experts”, all of whom will be doctors and golly gee whiz they just might have a bias.

    And Felix still has no substantive responses to my proposal for dramatic tort reform across the board. He doesn’t explain why doctors should get a different system from the rest of us.

  • JohnS

    Doctors should not get a different system. The Florida legislature has treated med mal cases completely differently than other torts. It is very expensive and difficult to even file a case, let alone litigate it. Meanwhile, egregious malpractice continues to occur, unchecked.

  • Dianna Inkster

    I don’t think doctors should take a medical malpractice suit personally nor should the other healthcare workers involved in the case. Surly health insurance premiums should go to providing healthcare, not lawyers’ fees to protect the doctors. It has now been decided that there are not enough doctors in Canada or the U.S. Obviously, the quality of healthcare is going to suffer until there is enough medical personnel available. Let’s put more money into education and into the recruitment of intelligent, perceptive teachers so we have an intelligent educated citizenry for which to draw our healthcare workers. I could have sued a couple of physicians over a serious medical malpractise situation going on for decades, but I have chosen not to. Instead I have declared war on ignorance concerning type 1 diabetes and I wage that war on the Internet and in the small city in which I live. chuckle Maybe, the doctors wish I’d gone to the courts. bg Thank you.