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Social Malpractice

Posted by Rick · June 14th, 2004 · 2 Comments

I ran across an interesting quote the other day. I thought at the time that it fit perfectly with all the “noise” in politics these days. However, it’s particularly fitting for the topic of the current blog article. Today’s article is about how the great supporters of the idea that the market can take care of itself are claiming that unless we begin to regulate the market so that consumers have less power, the market will fail. The quote?

A lie told often enough becomes the truth.

Ironically, that quote came from Vladimir Lenin, another who felt that free markets were a mistake.

Don’t misunderstand me. There absolutely are times when the market needs to be regulated for the good of society.

The problem is that whenever there is talk about regulating the market to protect consumers against manufacturers or other “business concerns” from whom we may really need protection, we’re told that the market can handle itself. Such assertions have, in the past, given us the Savings & Loan debacle, Enron and gas prices which are at least twice today than they were in the 1980s even while the price of a barrel of oil is lower or about the same. (The price of a barrel of oil at its peak in the 1980s was about $38; today it was listed at $38 on Barron’s. For most of 2000, while gas pump prices were rising, oil was about $30/barrel.) We could deal with our gasoline problem by regulating the automotive industry: Let’s require manufacturers to make more fuel efficient and alternative-fuel vehicles. But we’re told it’s best to leave that to market forces. What this means is that rather than reduce our need for oil, we should allow oil companies to take over our national parks. Hell, we’re only preserving them so our children have an environment left to inherit anyway! The problem is that regulating this way would save consumers money. And every penny in the consumer’s pocket is a penny that’s not in an oil company bank account. Best leave these things to market forces.

Whenever there are concerns about companies pumping polluting pesticides into our groundwater or making our air increasingly unbreathable, we’re told that “it’s not really that bad.” Our current administration has been systematically gutting pollution standards because, after all, it’s best to leave our health to the market.

Well, unless you really mean “health.”

ABC News reported yesterday on a proposal made to the American Medical Association by Dr. J. Chris Hawk, a South Carolina surgeon.

The resolution asks that the AMA tell doctors that except in emergencies it is not unethical to refuse care to plaintiffs’ attorneys and their spouses.

The headline of the story said “Doctor proposes not treating some lawyers: Frustrated by malpractice cases, doctor proposes not treating some lawyers.” Note that “some lawyers” here are “plaintiffs’ lawyers”; presumably it would be okay to treat lawyers who represent doctors.

This idea of doctors not wanting to treat lawyers will be no huge surprise to any regular readers here. You will recall my own experience with a doctor who said he would not have agreed to be involved in treating my stage IIA life-threatening malignant melanoma if he had known I was a law student.

This attitude might be understandable if medical malpractice were really the cause of rising medical costs. But no matter how many times this lie is repeated, it is not the truth. Even the doctors’ groups (if not all individuals doctors) know it.

According to polling data, a majority of Americans think malpractice litigation is a leading cause of health care inflation. However, that reflects the omnipresence of AMA and insurance industry propaganda, not reality. The total cost of malpractice litigation comes to no more than 2 to 3 percent of the total national health care bill. (About half of this is attributable to the premiums doctors and hospitals pay; the other half is the cost of ?defensive medicine,? the unnecessary services doctors order to protect themselves against lawsuits.)

Two to three percent of the total national health care bill supposedly caused by greedy lawyers. After all, doctors don’t make mistakes. I know this for a fact because I’ve sat for hours in doctors’ offices lately and during the five to ten minutes I get with most of them after that wait, it’s unquestionable that they are incapable of making errors, regardless of their workload or schedule. Imagine how well your kids would turn out if you gave them the ten to fifteen minutes every three months that my doctors have time to give me. I’ve already told my wife to be sure we never miss a life insurance payment. My cancer will return. It will be missed. And I will die. Because I have a sneaking suspicion that it takes longer than ten or fifteen minutes every three to six months to determine if you have malignant melanoma hiding out in your body. (Disclaimer: I have one very good doctor, Catherine Wille, M.D. She is a family & general practice doctor who has made a conscious decision not to allow her practice to be so overwhelmed that she cannot attend to her patients. I’m sure it costs her, but she seems to consider quality of life for her patients and herself over the money.)

Numerous remedies have been proposed. Increasing the number of doctors in our society and allowing them to spend more time with patients isn’t one of them. Capping awards at $250,000, including attorney fees, has been mentioned as one remedy. Now, I’ve never been known for my terrific math skills. But let’s imagine that you’re a paraplegic and you cannot take care of yourself. The reason this happened to you is because a doctor made a mistake; before that, you were healthy and had a good job. If the caps work, the cost of health care should drop an incredible — uh…two to three percent. That’s okay, though, because when you win your lawsuit, you’ll have $250,000. You can live on that a long, long, long time. After all, you’re a paraplegic! It’s not like you could actually do anything. You can pay someone $5 an hour to watch you lie in bed. And who needs a nice house when they’re paraplegic anyway? Get a room already! See? You can probably live forever on that $250,000!

Well, that’s assuming lawyers do the right thing and work for free. After all, why should they get paid? My own law school education has only cost me under $30,000 so far and I’m already half-way through. That’s chump change, right? By the time I’m done, my educational bill will be about $50,000 to $70,000, depending on how much I have to borrow to pay for school and ancillary costs. If I recall correctly from a prior $80,000 mortgage I had, I should be able to pay off my school debt after only 30 years of $600 payments, depending on interest rates. Eat schmeat. Why should I get paid anything to practice law?

California, where I live, already has a $250,000 cap similar, but not identical, to that proposed by the Bush Administration for the entire nation. Our malpractice insurance rates have been so well controlled by this move that the first plastic surgeon I consulted with when I was to have a potentially-seriously-disfiguring cancer surgery said he would not have agreed to see me if he knew I was a law student. And I don’t even plan to do malpractice. And if I did, I’d probably be defending doctors, based on my background of 20 years in health care prior to going into information technology. After all, doctors have lawyers, too. And I guarantee you theirs are better than yours much of the time.

The truth of the matter is that if you were the patient I described above, you better have a good will and use whatever’s left of your award to pay for your funeral plot and services up front. Because the real cost of health care isn’t malpractice insurance and whatever else you get out of your $250,000 award after paying to fight a doctor who won’t just own up to his mistake and give it to you isn’t going to last long.

[J]ust by limiting victims rights to get recovery you are not going to bring down insurance premiums, because what happened in California was there were legitimate claims that couldn’t get filed, people couldn’t get attorneys. But what happened was insurers — until they were compelled by regulation — never returned the savings to doctors. They had to be forced to. And that is the way unfortunately insurance companies act. And the reality is malpractice costs are half of 1 percent of all healthcare costs. This won’t bring down healthcare costs. — Schaffler & Cohen, “Tough Call: Should there be a cap on medical malpractice awards?” The Foundation for Taxpayer and Consumer Rights, March 4, 2003.

The Congressional Budget Office, by the way, when analyzing malpractice legislation in the House of Representatives, says (as does the quote above from The Foundation for Taxpayer and Consumer Rights story) that

[H]ealth insurance premiums would decrease by less than half of one percent. The CBO also did not score any savings in this bill from reductions in “defensive” medicine, saying most estimates of the amount of health care spending attributable to defensive medicine are “speculative in nature.” — quoted in an article by the Democratic Policy Committee on Myths and Facts about Medical Malpractice.

No doubt some of you are already set to go off on me: “Those are Democrats saying that!” Read it again, friends. It may be a Democratic website, but they were quoting the Congressional Budget Office. Furthermore, Rita Melkonian, M.D., writing on the San Francisco Medical Society website noted,

Study after study indicates that medical malpractice premiums charged by insurance companies do not correspond to increases or decreases in payouts to victims, which have been steady for 30 years.

She asks the question,

As patient advocates, we have an obligation to our patients and belief in their rights. We also believe that insurance companies must maintain their economic viability in order to cover any potential losses incurred by their insureds. However, the fact is that the insurance industry has too much control over the health care system and does not care about patients, but profits. So the question behind the proposed legislation is, “Who is really behind this?”

Who really is behind this? Who would benefit if malpractice awards went down while premiums stayed the same? Is it the health care consumer, who would see anywhere from a one-half-of-a-percent to possibly as high as a three-percent drop in health care costs?

Thinking back to the quote at the beginning of this article, who has the money to repeat the lie that health care costs are out of control because insurance companies have to pay whenever doctors harm people often enough that we will believe it?

I guess we’ll never figure that one out.

Special thanks to Bob Marcotte for sending me the link to the ABC News story that triggered this article.

Mark King called to correct me on the caps available in California. As it turns out, California’s cap is on “non-economic” (sometimes called “punitive”) damages with a separate cap on attorney’s fees. If I understood him right (I admit my head was buried for several hours in International Law when he called), California is considering a rule that would take the attorney’s fees from the non-economic damages award and then take 75% of the remaining non-economic damage award — which, remember, is capped at $250,000 — and give it to the state.

It’s worth noting that if I understood the sources correctly the proposed national plan would not be identical to, but only similar to, that of California.

The end result of either plan seems to be that the patient gets reimbursed for economic damages — in other words, gets the money to pay for hospital care, etc., plus the best guess on lost income — but is left with their destroyed body and life. Meanwhile, nothing changes with what I said in my article above: Doctors’ malpractice fees, not being tied to the 0.5 to 3 percent expected drop in health care costs anyway, would not go down.

As Mark says, “What would happen if someone wanted state law to dictate how much insurance companies can charge? It would never happen.” But no one sees a problem with telling juries — who have all the facts of the case in front of them — how much they can charge defendants for the destruction of a human life.

Categories: Social Issues


2 responses so far ↓

  • 1 Mark // Jun 14, 2004 at 10:07 pm


    Your head really was in your book!

    Punitive damages are part, but ONLY part of non-economic damages. Economic damages would be medical expenses and lost income. That’s it. No cap there.

    But pain and suffering, punitive damages, other non-economic losses, those are capped at $250,000 for medical malpractice. As if that were not enough, the state dictates how much attorneys can charge for medical malpractice claims.

    This has had a chilling effect in that fewer attorneys in California will consider taking medical malpractice cases. That was the whole point in the first place. Patients suffer. And doctors are not the ones who benefit. Fat cat insurance companies, who own state legisators and whose campaign contributions go to our elected insurance commissioner, make out like bandits.

    The 75% proposal I told Rick about is an idea that the state should seize 75% of all punitive damages in tort cases of all kinds (not just medical malpractice). Talk about high taxes! Plaintiff’s attorneys would still get their share, but individual plaintiffs would not profit greatly from the awards juries use to punish bad actors. Some states already do this. California’s elected leaders are now considering following suit (no pun intended).

  • 2 Rick // Jun 14, 2004 at 10:33 pm

    Well, I’ve been told that I really had my head in worse places than my book! 😉

    Thanks for the clarification and additional information that puts my comments back on track!

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