January 29th, 2008

George Bush and the Myth of "Junk Medical Lawsuits"

It happens like clockwork. Every State of the Union George Bush has given I remember him making comments about junk medical malpractice suits of some kind. Last night he, unsurprisingly, did it again.

And every State of the Union speech follows the similar pattern of failing to provide any empirical evidence to support “junk” suits being an actual problem. I’ve never seen a study showing frivolous suits to be a problem. Have you?

In fact, just the opposite is true. Empirical research shows that the medical tort system works, except for those times that it actually favors doctors. But it doesn’t stop certain politicians from trying to perpetuate the myth of frivolous litigation.

And it’s worth noting that the contingency fee is a strong disincentive to bring bad suits, as the attorneys generally must take the risks with their own money, and since the suits are militantly defended bringing bad suits leads to attorney bankruptcy. The medical community already enjoys de facto immunity for medical malpractice in many jurisdictions for all but those instances with exceptionally bad injuries. And the federal government, and every state that I know of, also has rules in place to sanction frivolous suits when they are brought.

So there is a good reason you won’t see Bush and the tort “reformers” tout any kind of empirical evidence. Because their agenda is driven by anecdotes of the occasional bad cases brought by a bad lawyer. Not by actual studies.

On the political front, I’ve always found it odd that tort “reform” comes from the right wing of politics, since taking personal responsibility for one’s actions (or mistakes) is such an important concept. But it falls by the wayside, without explanation as to the obvious hypocrisy to political theory, when it comes to big business and medicine. Instead, the victims are asked to bear the brunt of a burden caused by others.

So too have the concepts of states rights and limited government fallen to the wayside when it comes to looking for ways to lend protections and immunities to business and medicine when they have fouled up and hurt someone. It’s certainly not the way a capitalistic society is built.

Maybe, someplace and somewhere, someone has come up with a rationalization for the political hypocrisy. If there is one that actually makes sense — a justification for giving government protections and immunities to the wrongdoers at the expense of the victims — I’d like to see it.

Addendum: Ted Frank commented on this piece at Point of Law, and I have responded here: More on Bush’s Frivolous Claim of “Junk Medical Lawsuits”

January 1st, 2008

You Call That A Tort "Reform" Survey???

Most people with a modicum of intelligence know that a survey’s results are only as good as the questions that are asked. Rigging survey results is easy. The question here: Did Republican New York State Senator Stephen Saland give his constituents a deliberately rigged survey, or inadvertently screw up?

Here is the question that came out of a previously unpublished survey that I received via email from a constituent:

Would you support limiting medical malpractice law suits in order to decrease health care costs?

The problem with the survey question should be self-evident, but if it isn’t to you, I’ll spell it out: Medical malpractice suits are a tiny part of health care costs, so closing the court house door to people, like they do in California, will have no effect. Thus, the question asks you to assume as true its faulty premise.

Should you take my word for it without data? Nope. So let’s open up a copy of the recent report by Public Citizen that they put out in response to New York’s self-inflicted medical malpractice insurance “crisis.” In it, Public Citizen notes (with citation to authorities at pp. 6-7) that:

The sum of medical malpractice payments made by New York’s doctors in 2004 was
$765.8 million, accounting for only 0.61 percent of the $126.1 billion New Yorkers spent on health care that year (the most recent year for which such costs are available). Medical malpractice payments were no more than 0.77 percent of New York’s overall health care costs in any year since 1991.

With such a small sliver of health care costs being devoted to malpractice payments, it is foolish to assume that limiting malpractice suits will lower health care costs. It won’t happen. Worse still, a grant of some type of immunity or protection to a person that negligently injures another would shift the burden from that person to the injured and ultimateley to the taxpayer. That happens when the injured person starts consuming tax dollars from Medicaid and ending their tax payments from work due to their disability. Why a person that believes in limiting government, as Senator Saland presumably believes based on his Republican credentials, would want to provide governmental immunity/protection to a tortfeasor, escapes me.

So the question is, did Senator Saland submit a rigged question to his constituents on purpose, or was it inadvertent?

One way to know is to look at the other questions he asked. Here are a few that I cherry picked from the 12 that were asked:

Would an additional tax incentive for energy efficient cars and home heating sources encourage you to switch to using alternative energy?
Do you support legislation to make same sex marriages legal in New York?
Do you support the legalization of medical marijuana if it is prescribed by a doctor for seriously ill patients?

These look like fine inquiries. Since most of the questions on the form look like legitimate inquiries to constituents, even if some are imperfectly phrased, I think the questionnaire was likely done in good faith.

But how did such an obviously awful question about tort “reform” get included? I have to assume it is simply a lack of knowledge on the Senator’s part, that is no doubt encouraged by the medical industry and the insurance companies. I can see no other explanation.

I finish here by saying I’ve never met the Senator, and have no idea what his record is on closing the courthouse door to those that are injured, but I’m a glass-is-half-full kind of guy, so I give him (and everyone else) the benefit of the doubt unless I’ve been given a darn good reason to assume otherwise. I therefore assume the question was written out of ignorance, not as a political ploy of sending out a rigged question.

But it also means that if this Senator is under the mistaken impression that limiting medical malpractice suits will decrease health care costs, then so too are others.

(Eric Turkewitz is a personal injury attorney in New York)

January 1st, 2008

Another Tort "Reformer" Sees The Light

Dr. Dave Stewart is a California anesthesiologist. He supported tort “reform.” Then his 72 year old mother died after knee surgery from an undiagnosed bowel obstruction. When the family tried to hire a lawyer, they were turned down by two dozen different medical malpractice attorneys. (LA Times: Lacking Lawyers, Justice is Denied)

Why were they turned down? Because California has a $250,000 cap on non-economic damages (pain and suffering). And since his mom wasn’t working, it meant that any recovery was very limited. When you figure in the tens of thousands of dollars that might be needed for the case, and the vast amount of time, and the high risk of taking such cases, the lawyers weren’t interested.

Now guess what? Dr. Stewart isn’t such a fan of tort “reform” anymore. Surprised? Me either. It happens like all the time. Remember tort “reformer” Robert Bork? He sued big time for his injuries. Ever hear of Frank Cornelius? He wrote in the New York Times in 1994 how he was “crushed by his own reform.” In fact, the blog TortDeform has a gallery of what they term the “hypocrites of tort reform.”

Perhaps these people fall in the category of, “What’s good for thee is not good for me.” Or, perhaps, they have simply never given full thought to the true ramifications of their actions.

(hat tip: Day on Torts)

(Eric Turkewitz is a personal injury attorney in New York)

December 4th, 2007

Tort "Reformer" Michael Savage Brings Lawsuit

Right wing radio talk-show host and tort “reformer” Michael Savage has brought a lawsuit. The infraction? He was quoted by an Islamic group on its website in which he called the Quran a “book of hate” and said Muslims “need deportation.”

Savage (a pseudonym for Michael Alan Weiner), perhaps unaware of the First Amendment, said the Council on American-Islamic Relations (CAIR) had violated copyright law by using the excepts in a campaign to persuade advertisers to stop sponsoring his show, according to this San Francisco Chronicle story. From the article:

Savage calls the Quran a “hateful little book,” says Muslims “breed bombers” and asserts that the religion of Islam seeks to “convert or kill” nonbelievers.

Savage, who claims to have lost $1 million in revenue as a result of the boycott, said in an Associated Press story that “he was talking about Iran president Mahmoud Ahmadinejad and his dangerous and violent brand of Islamic extremism, not about the religion in general.”

The vitriolic segment was apparently a medley of statements from different broadcasts, and not a single 4-miute spewing. Savage, who apparently has a history of attacking those he disagrees with, is upset now that the roles are reversed.

The lawsuit, according to many portions of the Complaint at the Daily Kos, claims:

“The CAIR misappropriation [of the talk show excerpts] was done for political purposes unrelated to civil rights … [but instead] to raise funds for CAIR so that it could self perpetuate and continue to the (sic) disseminate of propaganda on behalf of foreign interests that are opposed to the continued existence of the United States of America as a free nation.”

At the Savage website, there is an announcement of the suit trying to silence the Islamic site, accompanied by a “Legal Defense Fund” to “Support Freedom of Speech.” George Orwell, it appears, is alive and well.

And on the tort “reform” front, Savage has had this to say:

“Pass tort reform now. Lawyers are important to a society of laws. But lawyers are like red wine. Everything in moderation. Today we have far too many lawyers, and we’re suffering from cirrhosis of the economy.”

Note to Savage: My use of your book cover as an illustration constitutes fair use. I recognize, of course, that getting people to write about you and buy yoru stuff may have been the real point of the lawsuit.

(hat tip to Rhymes with Duck )

Links to this post:

more civil justice in the blogosphere
eric turkewitz discusses two new cases and what they have to do with tort “reform”: one filed by actor dennis quaid and the other filed by radio personality and tort “reformer” michael savage. turkewitz discusses why quaid’s medical …

posted by Kia Franklin @ December 05, 2007 2:19 PM

October 5th, 2007

Texas Tort "Reform" and the New YorkTimes

The New York Times reports today on the huge increase in doctors flooding into the Texas since medical malpractice damages were severely capped in 2003. Want to know what else has gone up? Patient complaints and actions against doctors by the Texas Medical Board.

The article quotes an official as saying that disciplinary actions have risen only 8 percent. But is that really true? Not when I look at the numbers.

Here’s the quote buried on page 2:

Since 2003, investigations of doctors have gone up 40 percent, patient complaints have gone up 25 percent, and disciplinary actions about 8 percent, said Jill Wiggins, a board spokeswoman.

Maybe that official isn’t looking at these statistics. Nor, apparently was the New York Times.

Total Disciplinary Actions:
2002: 187
2003: 277
2004: 256
2005: 304
2006: 335

If you measure from 2002, the last full year before the caps were imposed, then disciplinary actions rose 79%. If one is going to do a “before” and “after” comparison that seems the likely year to use.

If, on the other hand, you are trying to spin the New York Times to claim only a minimal change, then you ignore the rapid increase over four years and minimize the damage by only discussing the change from 2005 to 2006.

By the way, 2007 isn’t shaping up much better, with 88 doctors disciplined at the Medical Board’s August meeting, 30 in June, 34 in April, and 41 in February. That’s 193 so far, with two more meetings to go, on a pace to well exceed the 2002 numbers.

So Texas is clearly getting more doctors. They just might not be the ones you want.