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Featured Discussion:
ELECTION 2004


Election 2004 Special; links down
By James R. Copland

We're excited to have a special Election 2004 featured discussion by hosting two contributors who are very well-versed in the topic of tort reform but come down on the opposite sides of the political fence. Dr. Ron Chusid, founder of Doctors for Kerry, and our own Ted Frank, a Bush supporter, will make the case for their respective candidates. Bookmark us here, so you can join the discussion as it develops!

Links down: Sept. 20 Chusid, Frank; Sept. 21 Chusid; Sept. 22 Frank, Chusid; Sept. 23 Frank 1, Frank 2; Sept. 24 Chusid, Frank, Chusid, Frank, Chusid; Sept. 27 Frank; Sept. 28 Chusid.


Overcoming Preconceptions on Democrats and Malpractice Reform
By Ron Chusid

Thank you for the opportunity to explain why many physicians are supporting John Kerry and John Edwards in light of the frequent attacks on them over malpractice reform. There is a prevailing prejudice that, being attorneys (despite the fact that Kerry worked as a prosecutor, not a plaintiff's attorney) or simply because they are Democrats, they are unlikely to act to resolve the malpractice situation. We are dealing with individual candidates who should be judged based upon the distinct policies and experiences they bring to the table rather than stereotypes as to what Democrats believe in. Basing judgments on such stereotypes has been hazardous in recent years as we went from Democrat Bill Clinton, who championed welfare reform and announced that "the era of big government is over" to Republican George Bush who brought "big government conservative" into the political lexicon.

It is especially dangerous to make such assumption about John Kerry. Kerry has often been characterized as a fiscal conservative who has been a strong supporter of small business and who has broken with his party to support a balance budget. On health care, Kerry has been a pragmatist rather than an ideologue, learning from previous attempts to change the system. The Kiplinger Letter, hardly a publication of the left, has characterized Kerry's proposals as "friendly to small business." Kerry understands that resolving the malpractice situation is necessary, not only out of fairness but because of the need to control these costs in order for his health care plan to succeed. Kerry acknowledged the importance of controlling malpractice-related costs, as well as the prejudices against a Democrat taking action on this issue, in his book A Call to Service:

"Medical malpractice is another area in which my plan would control costs. This is a subject which some Democrats have shied away from, fearing that it might offend trial lawyers, an important source of campaign dollars for many Democratic candidates."

John Edwards has also been a victim of assumptions of being unfriendly to the medical profession. As a physician, I initially had mixed feelings about a malpractice attorney running, but early in the nomination battle did appreciate Edwards' support of physicians' interests related to dealing with HMO's. Edwards' personal knowledge of the malpractice system has allowed him to make valuable contributions to Kerry's proposals for malpractice reform. Edwards has also written in support of doctors on the malpractice issue:

"The rising cost of malpractice insurance for doctors is getting in the way of good health care. In rural areas, some specialists can no longer afford to practice, and patients can't get the care they need. We need to fix this problem now, and we need to fix it in a way that is consistent with the doctors' own Hippocratic Oath: First, do no harm." (Let's Keep Doctors in Business, Washington Post, May 20, 2003.)

John Kerry's proposals on malpractice reform include opposition to most punitive damages, review of claims before a suit could be filed to ensure that a reasonable case exists, encouraging the use of arbitration, imposing sanctions against plaintiffs and attorneys who bring frivolous suits (including adoption of the "three strikes and you're out" provision first advocated by John Edwards), working to reduce medical errors, and elimination of special privileges which allow insurance companies to fix prices and fail to pass savings on to physicians.

Most doctors supporting Kerry initially backed him for reasons other than malpractice reform, such as concern for the 45 million people without health insurance, a desire to keep conservative ideology out of medical and scientific decisions, or because of the harm they see to their patients and practices due to provisions of George Bush's Medicare bill. Fortunately we also found that the conventional stereotypes did not apply and that it was not necessary to compromise desires to reform the malpractice situation by supporting John Kerry. In July 2003 the National Journal had a nonpartisan group compare the health care positions of all of the candidates then running. The survey used lowering malpractice rates as a measure of "reducing the squeeze" on physicians. For his support of caps on settlements, George Bush was not surprisingly ranked near the top, ahead of all the Democratic candidates except one: John Kerry. Kerry came out on top, even ahead of George Bush, despite his opposition to caps.

Kerry's opposition to caps, and votes against bills containing such measures, is commonly used to argue that Kerry opposes malpractice reform. The National Journal study demonstrates that there are other ways to assist physicians on the malpractice issue, and to achieve high marks in this area, beyond caps. While many doctors supporting Kerry do support caps, such measures raise a number of questions, both in terms of efficacy and justice. Cases which are cited to show a benefit from caps are ambiguous as generally other factors have appeared to be responsible for any reductions in malpractice premiums.

George Bush, when on the stump, places the blame for the cost of health care almost exclusively on malpractice. The Congressional Budget Office's study on malpractice found that malpractice only accounts for 2% of health care costs. Those of us in the medical profession suspect that this underestimates all the effects of malpractice, and John Kerry understands this as he includes solving the malpractice situation as part of his plan to lower health care costs. The CBO also found that caps would only reduce insurance premiums by less than half of one percent, hardly making this a reasonable solution for individuals or businesses faced with premiums which have been rising by double digits the last few years.

Caps also present concerns beyond being of limited value. This special treatment for non-economic damages trivializes such damages. If I were to lose my vision, the loss would be far greater than the effects on my income. A loss of a child is a devastating loss which greatly exceeds any economic loses. I have concerns about such losses being handled by arbitrary limits without regards to the circumstances of the individual case. Rather than having politicians in Washington dictate the amount of settlements this might best be left in the hands of local juries which have reviewed individual cases. I find it surprising that conservatives who generally distrust Washington advocate having Congress make such decisions to override decisions made in local communities. Of course I often join conservatives in their distrust of the federal government, especially one in which one party now controls all three branches.

Proponents of caps often cite the more extreme cases found in certain localities, and more often certain specialties, where malpractice is impacting access to care. While physicians, and perhaps the public, give most notice to the occasional huge settlement, the truth is that most malpractice suits do not result in a payment to the plaintiff, and a large percentage of settlements are small enough so that caps would have no bearing. For the typical physician the more important concern is that they are not sued at all, not the maximum size of a possible settlement. This is where John Kerry's proposals have the most benefit as they keep frivolous suits out of the legal system. For those situations where there is a true crisis, and the cost of malpractice is keeping physicians from practicing their specialty, pragmatic solutions could be devised without resorting to caps which do not impact the majority of physicians.

If proposals such as those Kerry has already proposed are not sufficient, this does not preclude the development of further solutions. Kerry's campaign positions represent the first step, not the final word, in his attempts to resolve this problem. As James Carville wrote in Had Enough. A Handbook for Fighting Back, "It seems to me that rather than creating a big fake issue of tort reform as George Bush seems intent on doing, we just do what it takes to fix the problem:" Should measures such as those proposed by John Kerry fail to solve problems for specialties hard hit by malpractice premiums, as a last resort Carville suggests, "We say to doctors that if you're in a high risk specialty, and your premiums go up by a certain percentage in any given tax year, you get a [tax] credit to offset that rise." John Edwards expressed similar goals in the Washington Post article mentioned above:

"Together these measures will give relief to most doctors who are suffering under the staggering weight of insurance premiums. But where premiums still cause shortages of medical care, Washington must provide a temporary subsidy so good doctors can continue their essential work. We shouldn't be padding insurers' profits and hurting people who have already suffered immensely, as the president proposes. But we should be protecting good doctors and the patients who depend on them."

George Bush is out on the stump arguing that "you cannot be pro-doctor, pro-patient, and pro-lawyer; you must choose" as he makes references to Kerry's choice of John Edwards as running mate. Bush has apparently forgotten his earlier claims to be "a uniter, not a divider" but using such polarizing rhetoric to set doctors against lawyers will not help solve the problem. In contrast to George Bush's reliance on ideological rhetoric, both John Kerry and John Edwards approach this from a pragmatic, centrist perspective.

John Kerry and John Edwards have avoided resorting to turning malpractice into a question of being anti-doctor or anti-lawyer. For example, in response to the1999 study by the Institute of Medicine blamed medical mistakes for the deaths of 44,000 to 98,000 hospitalized Americans annually, John Kerry did not join those who used this as an excuse to justify suits against doctors. Instead John Kerry recognized that many of these deaths are due to systems problems and not errors by individual physicians. Instead of seeking punitive action, he recommended looking at current systems, knowing that this will decrease errors and decrease the potential for malpractice cases. While studies vary as to the exact numbers, many articles have made the point that five percent of physicians are responsible for a high percentage of large or repeated malpractice settlements. Rather than taking an ideological stand, we need a president who understands the nuances of individual cases. We must differentiate cases of "bad doctors" who are not properly disciplined from cases where the malpractice situation has gotten out of hand, and apply individualized solutions as appropriate.

By politicizing the malpractice situation, and attempting to pit doctors against lawyers, George Bush makes it harder to come to a common ground necessary for achieving a solution. We need a president such as John Kerry who is willing to go beyond singling out one party as the villains, and look for solutions which really work. John Kerry and John Edwards have been working to break down resistance to tort reform, find solutions fair to both doctors and patients, and are in a position to sell their plans to both Democratic groups and trial lawyers. Just as only Nixon could go to China, perhaps John Kerry, with the help of John Edwards, is in the best position to devise a fair solution which could be sold to both trial lawyers and physicians.


Nixon went to China, but Kerry-Edwards didn't go to Madison County
By Ted Frank

I'd like to thank Dr. Chusid for taking the time to join us. There's a certain entertaining irony that in the doctor-versus-lawyer policy battle, a doctor is taking the side of the party that has thrown its lot with the lawyers, while an attorney is taking the side of the party selling itself as pro-doctor.

Who is better on medical malpractice reform, Bush or Kerry? Dr. Chusid almost seems ready to concede this issue by arguing, at least as a fallback position, that it's issues of health insurance, government funding of medical research, and Medicare, rather than tort reform, that should lead doctors to support the Democratic ticket. Of course, someone can choose to prefer one candidate over the other despite one candidate's failings on a particular issue or set of issues. (My support of Bush is in spite of the fact that on issues of gay rights, he's substantially to the right of Kerry in rhetoric and slightly to the right in position.) But it would be beyond the scope of my mandate to expand this debate to include tax cuts, free trade, and the Bush FDA's actions to protect pharmaceutical companies from unfair products liability litigation, all of which benefit doctors and health care directly or indirectly. I therefore restrict my remarks to three premises, each of which Dr. Chusid challenges: (1) Kerry-Edwards are not credible tort reformers; (2) the proposed Bush-Cheney medical malpractice reforms are better public policy than the proposed Kerry-Edwards medical malpractice reforms; and (3) medical malpractice reform is a significant issue.

Dr. Chusid's opening essay addresses all three of these points (and I hope to have the time to address all of the relevant positions over the course of the week), but I'd like to start with the first of them, since it's the idea expressed in Dr. Chusid's essay title and concluding paragraph: the tort reform efforts of Kerry-Edwards shouldn't be judged because they're Democrats or lawyers, but on their record. Here I have to agree. But it's the record of Kerry and Edwards on tort reform that demonstrates that they are the inferior candidates on this issue.

"Only Nixon could go to China", but the analogy only stretches so far. Reagan embraced disarmament, but he also implemented substantial deregulation, as his record indicated he would. Clinton passed welfare reform (over Sen. Kerry's opposition (see Mickey Kaus, Jan. 28), but he was also behind a notoriously disastrous legislative health care effort. Bush has become a Wilsonian nation-builder, but kept his promise to reduce taxes.

In his 1994 run for governor, one of Bush's four planks of his campaign platform was tort reform, and he followed through with substantial tort reform measures passing in the Texas legislature in his first term. In 1999, Bush made Texas the first state to enact limited liability for good-faith efforts to address Y2K issues. At the same time, Kerry was unsuccessfully pushing language in a bill that would have substantially expanded Y2K litigation before criticism from Democrats sent the amendment to defeat. "'The Kerry amendment is a lightning rod for additional frivolous lawsuits,' [Sen. Ron] Wyden [(D-OR)] charged. 'Some of the language is so vague it's going to ignite a litigation derby.'" The Bush administration also passed a Good Samaritan law protecting from legal liability voluntary health providers who provide medical care through non-profit organizations. The Perryman Group found that the 1995 reforms benefited the average Texas household $1,078/year. While the new filibuster-friendly rules of the Senate have allowed a Democratic minority to frustrate many bipartisan tort reform efforts, the Bush FTC and FDA have made notable steps, and it's plain that tort reform, including medical malpractice reform, is a central (and popular) part of the Bush domestic platform.

On the other hand, Kerry has given slight lip service to the need to free the Democratic Party from being the political wing of the trial lawyers' lobby, but there's little to demonstrate it beyond the paragraph in the campaign book. In drastic contrast, Bill Clinton in the summer of 1992 showed his willingness to buck an important constituency. In the wake of the LA riots, a minor rap star had been quoted by the Washington Post as saying "If black people kill black people every day, why not have a week and kill white people?" Minutes after Jesse Jackson gave a speech praising the singer, Clinton spoke to the same Rainbow Coalition audience and noted that Sister Souljah's remarks were indistinguishable from the racism of David Duke. The occasion was so memorable that it gave rise to the term Sister Souljah moment. Clinton went on to lecture unions about the need for free trade, and then followed up by getting NAFTA through over Democratic opposition. Can anyone imagine Kerry giving either of those speeches? Has he done anything comparable in twenty years as a senator? As Mickey Kaus puts it, how can "a man who showed bravery on the battlefield ... demonstrate so little of it in his political life"?

The week Kerry named Edwards as his vice president, the two had a splendid opportunity to have their own "Sister Souljah moment" with the trial lawyers' lobby. The Class Action Fairness Act was aimed at abusive forum shopping for national class actions that hurt businesses, hurt consumers, and benefited no one except a small coterie of attorneys. It had bipartisan support of the majority of the Senate across the political spectrum, including such liberal senators as Jim Jeffords, Dianne Feinstein and Charles Schumer. The bill had earlier stalled by one vote when both Kerry and Edwards failed to provide the critical sixtieth vote to invoke cloture of a filibuster against it, but it was on the verge of passing the week Kerry made his VP pick after some minor changes prompted three opposing senators to switch sides.

How easy would it have been for Kerry and Edwards to send an olive branch to a business community worried about the unprecedented nomination of a such a vocal opponent to tort reform? Even with the business community clearing its throat about Edwards's nomination (including the Chamber of Commerce threatening to break tradition and take sides in a presidential election), Kerry-Edwards let the moment pass. The order went out for the Democrats to kill the bill. It was more important to Kerry-Edwards that a handful of attorneys be allowed to continue to skim from consumers and businesses than for Kerry-Edwards to try to neutralize the perception (now shown to be accurate) that they were doing the trial lawyers' bidding.

It would be one thing if this were an aberration. But it is not. Edwards, of course, made his name from questionable lawsuits against doctors, defended the litigation culture, and has regularly been the point-person to oppose tort reform. Kerry was in the 61-37 minority when he voted against the (later-vetoed) Common Sense Product Liability Reform Act of 1996, vocally opposed efforts to limit the multi-billion-dollar transfer of wealth from taxpayers to attorneys in the tobacco settlement, and has actively courted ATLA in the 2004 campaign.

One will note that noone screamed bogeyman tales about the fact that Bill Clinton was a lawyer, or that Hillary Clinton or Joe Lieberman or John Ashcroft or Evan Bayh are lawyers, or even (before he picked Edwards) that Kerry was a prosecutor. John Edwards isn't the subject of criticism because he's a lawyer. John Edwards is the subject of criticism because he's the personification of a lobby of a subset of lawyers that have sucked billions out of the American economy and are actively seeking to do more damage. It's not that tort reformers are worried that John Edwards is unduly influenced by the millions of dollars he's received from the plaintiffs' bar (though an earlier Democratic administration might have been); it's that the plaintiffs' bar has given Edwards millions of dollars because they know that John Edwards is a true believer. (ATLA was holding its annual convention when Kerry announced Edwards; there was "a whole lot of cheering and foot stomping" in response to the news, said New York State Trial Lawyers Association president Shoshana Bookson.) Kerry and Edwards have regularly taken the side of trial lawyers over the public interest, and their campaign demonstrated out of the gate that they would do so even when doing so would cost them political points in what looked to be a close election. How can we expect them to support tort reform, much less meaningful medical malpractice reform, when actually in office?


The Preconceptions About Kerry Remain Unfounded
By Ron Chusid

I also appreciate the irony which Ted mentions with regards to our respective professions and political affiliation in this election. In my case it is easy to break with expectations as a physician and to support John Kerry as his policies are preferable for the medical profession, and our patients, to those of George Bush. This includes John Kerry's positions on malpractice reform. I'm sure Ted has his reasons for supporting George Bush despite his anti-lawyer and other divisive rhetoric, and there is something commendable in "feeding the mouth that bites you" for what I assume Ted sees as a greater good.

I note that Ted does misstate my position a couple of times. I assume that this is inadvertent, and will correct the record. However, I cannot help but be wary considering that George Bush's campaign is based upon distorting Kerry's positions and voting record, and then attacking the straw man it creates rather than commenting on John Kerry's actual views.

Ted declares victory, or claims I'm ready to concede defeat, based upon my comment on the other positions for which physicians support John Kerry. I noted that many of us physicians supporting Kerry were initially attracted to his campaign for a variety of reasons other than malpractice reform, but subsequently found it fortunate that " the conventional stereotypes did not apply and that it was not necessary to compromise desires to reform the malpractice situation by supporting John Kerry."

Ted divides this debate into three parts, the first of which he discussed today. Issue two gets to the heart of the matter, but Ted can save his time on argument three. It is not necessary to argue that medical malpractice reform is a significant issue as, contrary to his claim, I am in agreement on the matter. Our differences are over how this is more likely to be achieved, not that it desirable or necessary.

In attempting to make the case that Kerry would not be serious in seeking malpractice reform, Ted presented examples outside of malpractice. Talk about trying to compare apples and oranges. This does not relate to the topic at hand. as John Kerry has never claimed to be a proponent of limitations on all law suits in all situations. He does specifically, however, specifically advocate reform on malpractice as it has impact in areas such as patient accessibility to doctors and the success of his health care plan. Failing to support specific limitations in areas such as Y2K litigation does not provide reason to doubt Kerry's sincerity on those positions he does advocate, such as reforming malpractice.

Much of Ted's argument comes down to Kerry not speaking out on the subject in exactly the place or time as he (or others) desire. John Kerry follows his own schedule, sometimes even to the chagrin of those of us who support him. If saying the right thing at the right time is to be the litmus test, John Kerry passed in my book. When I had the opportunity to discuss malpractice reform with him at a private meeting with first responders in August, shortly after he chose John Edwards as running mate, Kerry made his determination to reform malpractice clear.

The choice of John Edwards did increase attacks on Kerry related to tort reform, but such attacks began well before this choice. In reviewing John Edwards career from the perspective of a physician, I did not find anything questionable as Ted accuses. The only "fault" I could find with John Edwards was his failure to review the medical literature of the future. The only reasonable standard to evaluate Edwards' suits is by medical standards of care and medical knowledge of the time. Edwards could not be faulted for being unaware of research which was not published for years following these cases. Edwards' suits have been repeatedly reviewed by political opponents and medical experts, and have held up well to such scrutiny. Face it, there was no reason for Edwards, who had the luxury of picking from many cases, to bother with frivolous suits as opposed to maximizing his chances for victory by limiting himself to valid cases.

Ted's arguments give no reason to doubt John Kerry's sincerity in planning to reform the malpractice system. In the case of George Bush, the question is not whether he will follow through with his proposals but whether such proposals will have the desired effect. George Bush's policies tend to have results which are180 degrees opposite to how they are packaged politically. In the case of George Bush's tort reform in Texas, in light of the increases in malpractice premiums ranging from 20 percent to 35 percent, as a physician my response must be, "no thank you, Mr. President." I'm not interested in looking back at Y2K legislation or creating a Sister Souljah moment. I'm interested in replacing policies which are Wrong for doctors, Wrong for patients, and Wrong for America with those of John Kerry which will provide real answers on health care and malpractice.


In defense of caps
By Ted Frank

With this post, I state part of the case for the Bush proposal, and address Dr. Chusid's criticisms of it. While Dr. Chusid states that he agrees with me that medical malpractice reform is a serious issue, he cites a number of statistics in opposition to caps that serve, perhaps inadvertently, to underestimate the problem.

The centerpiece of the Bush plan is caps on non-economic damages. Dr. Chusid raises a number of objections to caps. But some of these objections--a shift of power from an unelected jury to the elected legislature; the fact that caps would not have a bearing in most cases; the injury to federalism--can only be taken so seriously. After all, as Dr. Chusid explains, part of the Kerry plan is to eliminate punitive damages for some categories of medical malpractice. To the extent that proposal is sincere, it is nothing more than an extreme cap of zero, subject to exactly the same objections raised against the Bush plan. (For more on the federalism question, which is perhaps the best argument against the Bush reform plan, though one equally applicable to Kerry's plan, see the analogous discussion on gun liability suits.) [Correction, 9/23: Bush plan not that injurious to federalism.]

Caps obviously can't be dismissed out of hand as a policy-making tool, then. That they would only affect extreme cases is a feature, not a bug. It is extreme cases and arbitrary awards in the millions that make it difficult for insurance companies to judge risk and make up a substantial portion of insurance expenses. It is extreme cases and arbitrary awards in the millions that encourage attorneys to push questionable scientific evidence in longshot cases in the hopes of winning a jackpot by virtue of an outlier judge and jury (or exceptional argument or exceptionally unsympathetic defendant). It is extreme cases and arbitrary awards in the millions that make doctors practice defensive medicine--such as unnecessary C-sections and unnecessary CT scans that may be counterproductive. It only takes a handful of such awards to have gigantic ripple effects throughout the system. Much of the medical malpractice reform debate comes down to this: is making a few dozen jurors feel better about awarding jackpots to a handful of grievously injured patients (who may or may not have actually suffered malpractice, as opposed to simple bad luck) worth the drastic impact it has on the quality and cost of medical care for hundreds of millions of people? Even if one thinks that the families of the injured are somehow entitled to millions of dollars from the rest of us, isn't there a better way to administer such awards (say, through, no-fault insurance (though that may have problems), a sort of social insurance system like the 9/11 Victims' Compensation Fund--or, heaven forfend, through privately purchased insurance) then through a system where over half the costs goes to the lawyers on both sides?

Dr. Chusid repeats a mistaken assertion of the Democrats when he says "The CBO also found that caps would only reduce insurance premiums by less than half of one percent." In fact, what the CBO said was that

A 2003 study that examined state data from 1993 to 2002 found that two restrictions--a cap on noneconomic damages and a ban on punitive damages--would together reduce premiums by more than one-third (all other things being equal).

(That study by Kenneth Thorpe--which, in its final version, appears to have scaled back its estimates--can be found here.) CBO also estimated that H.R. 5, the HEALTH Act of 2003--which passed the House, and was killed by the Senate (Kerry not voting, and Edwards voting no)--"would lower premiums nationwide by an average of 25 percent to 30 percent from the levels likely to occur under current law." According to HHS, "Malpractice reforms in the 1980s led to a 34% decline in malpractice premiums in those states that enacted [caps] compared with states that did not enact reforms." Indeed, the notoriously plaintiff- and lawyer-friendly state of California--which somehow implemented damages caps--has substantially lower insurance premiums than states without caps. Numbers like this are real empirical results, rather than a panel of experts from across the ideological spectrum scoring proposals like an East German figure-skating judge and awarding Kerry a 3.8 to Bush's 3.7. (More overwhelming evidence on the savings of caps: POL, Aug. 25; Jul. 13; May 19; May 19.)

What the CBO says is that, assuming medical malpractice expenses are 2%, reducing those expenses 25% will, as a matter of simple arithmetic, reduce total health care expenses by 0.5%. But, as Dr. Chusid acknowledges, that 2% assumption for medical malpractice expense is a great underestimate. There's more than just insurance premiums: there's the billions spent on inefficient defensive medicine, on hospital in-house lawyers, on time doctors spend with lawyers instead of with patients, on time doctors spend papering the record to protect themselves in event of suit, and on self-insurance--many hospitals don't use a middleman insurance company. And for a number of disciplines, the malpractice insurance rate is unquestionably higher than 2%--the average OB/GYN pays a quarter of her net income in premiums. Nor is this a problem, as sometimes expressed by some trial lawyer defenders, of some small percentage of doctors accounting for the majority of malpractice: in a given year, a sixth of America's doctors (and half of its neurosurgeons) are faced with a malpractice claim. (Similarly, the oft-cited 1999 Institute of Medicine study attributing tens of thousands of deaths to hospital errors is only relevant to malpractice concerns if, as Dr. Chusid implicitly acknowledges, one assumes a sort of strict liability for poor results.)

Dr. Chusid expresses concern that disparate "treatment for non-economic damages trivializes such damages." But that's just an inherent problem of quantifying the non-quantifiable. There's no market for suffering brain injuries, for blindness, for loss of mobility, for the loss of a child, for countless other tragedies of varying degrees of unbearability. Juries are essentially picking numbers out of thin air (and often on the basis of sympathy rather than on a reasonable finding of malpractice); even plaintiffs who have won jackpot awards will frequently say that they feel undercompensated. In a world with meaningful caps, one will undoubtably be able to point to anecdotes here or there where the result seems unfair. (Yet, surprisingly, though caps are in place in states throughout the country, and a powerful lobby and compliant media with the motive to publicize such cases, we don't hear much about them.) But the debate should consider both the costs and benefits: do we really want to drive many doctors out of practice for the sake of this handful of cases? Why is a cap that might limit a particular individual's recovery (but developed through the give and take of the legislative process) more "unjust" than the status quo, where vagaries of the happenstance of random judge and jury selection (and the happenstance of the performance of the doctor on the witness stand) that can result in wildly varying results for similar injuries. For example, Jennifer Campbell's brain damage at birth resulted in $4.25 million (before paying her attorney), but the family of Bailey Griffin, with similar injuries in the same state, won $23.3 million. If even the clients of the silver-tongued John Edwards can't get consistent results, why do we think this random lottery is worth the costs of the current system?

Dr. Chusid is generous to Senator Edwards when he defends the attorney of being guilty of nothing more than lack of prescience when he transferred millions of dollars from the North Carolina health care system into his pocket. But Edwards today continues to insist that his cerebral palsy cases were the result of failure to perform C-sections (even as evidence mounts convincingly that C-sections don't reduce the risk). Edwards's opposition to the creation of a no-fault insurance fund for cerebral palsy victims shows, perhaps, that the desire to fight for the little guy was at least in part self-motivated.

Kerry's plan is vague, so it's hard to gauge what the actual effects will be. But as I will discuss in my next post, it seems to be an attempt to blunt real reform such as caps, rather than improve the system. In many ways, it may well make matters worse. This is why Kerry's record on other tort reform issues is relevant. I certainly welcome evidence to the contrary that Kerry has a historic inclination to meaningfully buck the plaintiffs' lobby. Other than Kerry's vote to override President Clinton's veto of the Private Securities Litigation Reform Act of 1995 (of which more, see Professor Bainbridge), I'm not aware of it. The drain on the economy by the plaintiffs' bar and lobby is a real and serious problem; one is hard-pressed to be optimistic that a senator who has sided with that lobby for twenty years, and then went on to choose the most prominent spokesperson for that lobby as his running mate, is going to change his spots when it comes to medical malpractice reform. This isn't a "preconception," it's an evaluation of the evidence.


We Can Do Better Than Caps
By Ron Chusid

In considering caps on malpractice settlements we must consider questions such as whether they really affect malpractice insurance premiums, whether they reduce the cost of health care for the general public, whether they affect the filing of frivolous suits, whether they reduce the prevalence of defensive medicine, and whether they have any deleterious consequences which might outweigh possible benefits At most Ted provides a weak case that maybe caps will lower malpractice premiums slightly, with caps failing miserably on all other measures.

Ted starts by claiming that the statistics I cited about malpractice act to underestimate the problem. The statistics I presented do not reflect upon the seriousness of the crisis unless a campaign wants to use scare tactics to make problem appear even more serious than it actually is. Statistics used in opposition to the efficacy of caps are not a measure of the seriousness of the malpractice problem. Instead the statistics provide useful information about the malpractice problem which help evaluate possible solutions, and which place doubt on the ability of caps to be very beneficial. Solutions based upon mistaken assumptions about malpractice are likely to be faulty. To offer a solution for malpractice is not enough--any solutions must be efficacious and without undesirable side effects. For those of us in the medical profession, the caution that above all we must do no harm applies both to our practice of medicine and to the public policy positions we can endorse.

The elimination of most punitive awards under Kerry's plan is quite different from caps when you understand the principles guiding Kerry's opposition to caps. Kerry supports elimination of most punitive awards, which are to punish the doctor on top of seeking whatever awards are deemed justified based upon the injuries. Abolishing most punitive awards does not compromise Kerry's objections to limiting the rights of those who have truly been injured. Punitive awards are not required for patients to receive fair compensation for damages, especially in states such as Georgia where portions of punitive awards go to the state.

It is conceivable that abuses of the system with unjustifiably high awards will promote the practice of defensive medicine, although objective attempts to quantify this have failed to provide evidence that this amounts to a significant amount of health care dollars. During the years I've been in practice there has been a significant decrease in the urgency to perform Caesarian sections. The philosophy of "once a C-section always a C-section" mentioned in one of Ted's links was the prevailing philosophy in the past, independent of malpractice fears. This philosophy has been dying out despite the increased fear of malpractice. Picking an isolated example to the contrary does not change the overall trend.

Even if true that cases with unjustified awards, which Ted acknowledges are outliers, increase the practice of defensive medicine (and available evidence shows this as a very minor part of overall health care costs) the use of outliers would be poor justification for arbitrarily restricting the rights of every person who has been injured. There are much fairer solutions available. The legal system, to some degree, has reduced the problems of extreme settlements as they are frequently reversed on appeal. If solution of this problem were the real goal, additional solutions could surely be devised within the legal profession. There are additional solutions possible within the medical profession. For example, practice parameters utilizing principles of evidence based medicine could define both medially and medical-legally when CT scans or Caesarian sections are indicated. Under John Kerry's proposals for pre-trial review, if the only argument against a physician is failure to do a Caesarian section in cases where it was not required by established practice protocols, the case might not even make it to trial, reducing the drive to perform unnecessary tests or procedures.

Ted provides alternatives to the legal system for providing compensation to victims, despite exaggerating opposition to an arbitrary cap of $250.000 to support of mufti-million dollar settlements. I do not find it reasonable to limit compensation to victims of true negligence to those who have purchased insurance for this purpose, but other possibilities are open to consideration. I've wondered myself if systems analogous to no-fault insurance could partially replace the current malpractice system. Such plans would undeniably have problems as Ted notes, but it is conceivable that a system with problems could wind up being preferable to our current system that we both would agree has many flaws.

Replacing the current system to compensate victims is an interesting subject, and I would be interested in hearing Ted's views on the possibility of using such systems if he should desire to pursue this further. However, this intellectual exercise is irrelevant to his current argument. Current proposals containing caps, such as those supported by President Bush, do not include any such provisions. In the absence of containing a mechanism to protect the rights of those truly injured, my previously stated qualms about arbitrarily capping compensation for injuries such as loss of vision or loss of a child where the loss is primarily non-economic remain unanswered. Ted agues against even the validity of such damages. I would hope that even as physicians object to the current problems in malpractice, we have not allowed this to destroy all compassion for those who have truly suffered such losses. This illustrates a true difference in beliefs between physicians supporting John Kerry and the positions of George Bush. While we see many problems in malpractice, including the need to lower premiums and reduce the risk of suits when there has been no negligence, we also respect the rights of those who have suffered injuries to obtain fair compensation.

Previously Ted incorrectly claimed that I was arguing that malpractice is not a significant issue. While I did not take such an extreme and absurd position, here we see Ted (with views reflected in George Bush's proposals) taking the view on the opposite extreme as he denies the validity of damages I have discussed for problems such as loss of vision or death of a child. This would replace our system with one more analogous to what exists in veterinary medicine, where the death of a pet might only be compensated by the monetary value of the animal. Children are not dogs or cats, and the negligent death of a child would be a far greater loss. This desire to reduce the areas that are open to compensation is particularly worrisome as this philosophy is seen throughout George Bush's policies which would greatly reduce liability for negligence in areas beyond medical malpractice. The denial of compensation for such injuries is a serious consequence of accepting George Bush's views on tort reform which leads us to look for other solutions, especially in light of the limited efficacy of caps.

Ted is incorrect when he describes my quotation of CBO figures as a "mistaken assumption." As I noted he was doing in my previous entry, Ted is again comparing apples and oranges when he misquotes the data and my arguments. Ted is mixing up statements made about health insurance premiums with malpractice insurance premiums. George Bush is promoting caps as his primary mechanism to reduce health care costs. Therefore it is significant to note that the CBO found that Bush's proposals would only reduce such health insurance premiums by less than half of one percent. This distinction is also clear in the statement of the Democratic Policy Committee which he links to.

Ted again confuses apples and oranges when he discusses the estimate that malpractice only accounts for 2% of health care costs. Nobody is claiming that this number in any way corresponds to the percentage of income a physician pays for malpractice insurance, as Ted later cited these numbers. In reviewing studies on the impact of malpractice on medical costs, as well as the cost of defensive medicine, I agree that this 2% estimate might be lower than the true cost. However, the types of expenses Ted mentions have already been considered, and a more exact figure would not change the argument. Even if the exact figures were as much as double the CBO's estimates (and it is unlikely they are off by that much) the fact remains that lowering malpractice costs would have minimal impact upon the health care expenses of the general population or of employers in an era when premiums are rising by double digits annually.

The lack of savings from caps was also found in the nonpartisan analysis from Annenberg Political Fact Check, which concluded that "both the General Accounting Office and the Congressional Budget Office criticize the 1996 study the Bush administration uses as their main support. These nonpartisan agencies suggest savings – if any – would be relatively small." Addressing the cost of defensive medicine, they also report "A 1990 study by the Harvard University School of Public Health “did not find a strong relationship between the threat of litigation and medical costs,” CBO said. And a 1999 study in the Journal of Health Economics found only tiny savings – less than three-tenths of one percent – when studying the cost of Caesarian sections in states with limits on lawsuits, compared to states without limits." (http://www.factcheck.org/article.aspx?DocID=133)

Ted also appears to misunderstand the significance of the data presented by the Institute of Medicine. Their figures are of injuries and deaths due to errors alone, not due to poor results. These numbers are relevant to malpractice reform as they present an opportunity to reduce malpractice risk. While some have used these numbers as evidence of poor performance by doctors, John Kerry shows better understanding of the health care system as he realizes that many of the problems are due to systems errors, not negligent physicians. Physicians are at risk of receiving the blame for bad outcomes due to systems errors beyond our control, and reductions in such injuries as a result of Kerry's proposals will reduce physicians' risk of suits.

While the CBO figures show that caps will have a negligible effect on health care costs, their effects upon malpractice premiums is less clear. Ted acknowledges that initial estimates have been scaled back. The more evidence we have, the more scaling back is necessary. As I noted above, tort reform in Texas has been followed by increases in malpractice premiums of as much as 35% (Houston Chronicle, Nov. 19, 2003), and the same has been seen in other states. Analysis of the situation is often murky because multiple reforms have been enacted, and reforms other than caps are likely the cause for rate reductions. The reductions in premiums in California have been attributed to state regulation of insurance rates, which the Republicans oppose in their national malpractice plans. In many cases, improvements in the malpractice situation has also come about due to mechanisms of pre-trial review, as advocated by John Kerry, and not necessarily from caps. The more experience we have with caps, the more it is appearing that, in the absence of such controls on insurance rates and other mechanisms to address the problem, malpractice premiums tend to move towards the same levels as in states without caps.

There is a profound difference between how partisan attorneys and doctors look at evidence. For an attorney, data which supports one side is useful to make a point, and it is fair game to attack the evidence which contradicts their stand. In contrast, physicians are more accustomed to reviewing all the data and weighing both sides before settling on a course of treatment. One could pick and choose statistics which show that caps have lowered premiums, but others fail to show this result. We need clearer evidence of efficacy before choosing George Bush's proposals over those of John Kerry, which are more likely to succeed and which have less deleterious consequences. As we question the long-term value of caps on malpractice premiums, physicians have seen an analogous situation with HMO's. HMO's start in an area with the promise of lowering health care costs, but after a few years the costs begin to rise as before, but we remain stuck with the consequences.

The insurance industry and lobbyists have conceded the lack of correlation between caps and premium rate reduction in many statements on public record:

"Insurers never promised that tort reform would achieve specific premium savings..."
--Press release published March 13, 2002, by the American Insurance Association (AIA).

"No responsible insurer can cut its rates after a [medical malpractice tort 'reform'] bill passes."
--Bob White, President of First Professional Insurance Company, the largest medical malpractice insurer in Florida, talking about a proposed $250,000 cap in the January 29, 2003 Palm Beach Post.

"I don't think we would argue that the premiums are likely to go down. We believe it will have the effect of reducing the increases in the future. And one of the reasons the premiums won't go down is that even if noneconomic damages are capped, the losses for economic loss, medical expenses, for example, are still in this current environment escalating at, medical inflation is running in the double digits. I forget exactly what it was last year. So even if you were to cap noneconomic damages, the economic damages
will still cause acceleration in the premiums. So it would not go down, I want to clarify if I misspoke and said I thought the premiums would go down."
--Cliff Webster, Chairman of the Washington Liability Reform Coalition, testifying before the Washington State Legislature, House Judiciary Committee, Feb. 21, 2003.

"[M]any tort reform advocates do not contend that restricting litigation will lower insurance rates, and 'I've never said that in 30 years.'"
--Victor Schwartz, General Counsel of the American Tort Reform Association, "Tort Reforms Don't Cut Liability Rates, Study Says," published in Business Insurance July 19, 1999.

"We wouldn't tell you or anyone that the reason to pass tort reform would be to reduce insurance rates."
--Sherman Joyce, President of the American Tort Reform Association, "Study Finds No Link Between Tort Reforms and Insurance Rates," Liability Week, July 19, 1999.

Even if caps were to result in a modest reduction in premiums (something which could also be accomplished in a less objectionable manner) this does nothing for the other problems caused by malpractice. The failure of caps to reduce health insurance premiums have already been discussed. Attorneys, and most likely the general public, often fail to understand the reaction of physicians towards malpractice suits. While being in the courtroom is part of every day life for an attorney, being sued is something a physician never wants to face. For a physician, the main concern is not to be sued at all, not simply avoiding huge settlements. Most suits do not result in a finding against a physician, but physicians want to avoid being sued win or lose. Exclude the five percent of physicians who are responsible for most of the large suits, and the majority of remaining settlements are below the level where caps would be a factor. Caps would not protect us from frivolous suits, and therefore would also do nothing to reduce the forces which promote defensive medicine. For example, The Palm Beach Post, reviewing tort reform in Florida (June 20, 2004), quoted doctors who did not find the caps to be helping with their malpractice concerns.

The evidence is questionable as to whether caps have any significant long-term effect on malpractice premiums. Caps do not significantly lower health insurance premiums, reduce the risk of frivolous suits, or reduce defensive medicine. For the benefit of physicians reading this, resorting to caps is like treating diabetic patients with a marginal reduction in blood sugar (without a significant decrease in the glycosylated hemoglobin), but failing to address their hypertension, hyperlipidemia, and tobacco use. Even if caps did reduce premiums, their adverse consequences would be like treating a fungal infection with Amphotericin B. Just as we have newer, safer, antifungal agents we also have safer and more efficacious answers to the malpractice crisis from John Kerry and John Edwards.

Some might find it reasonable to combine caps with other measures such as those proposed by John Kerry and John Edwards, but even this option appears to be closed to us. Ted has indicated his intention to next criticize John Kerry's proposals. Apparently it is not possible to support George Bush and to support proposals such as pre-trial review, encouragement of arbitration, regulation of malpractice insurance rates, and possibly tax credits to offset excessive premiums. While I would encourage my colleagues to think twice about the effects of caps, some proponents of John Kerry's other malpractice solutions support him in the hope of simultaneously obtaining caps on the state level.

Ted continues to dwell on John Edwards, but this is all irrelevant, as it has never been refuted that his cases were consistent with the medical knowledge at the time of the suits. I see no point in engaging in debates as to whether Edwards' decisions of a decade ago were correct in light of the medical knowledge of today. No physician would want anyone evaluating their medical decisions of a decade ago based upon the medical knowledge of today.

Even if caps were of some value, we must consider their deleterious effects, and chose alternatives when offered others which are as efficacious. It is inevitable that settlements in different cases will be inconsistent, and there are difficulties in quantifying a fair settlement. This does not mean we should not try, and does not justify mandating an arbitrary nation wide cap. In reading the news it appears Ted suffers from a common phenomenon of increased awareness to information which supports one's interests. We see this as Ted stressed the isolated hospital which bucked the trend in reviving old policies on Caesarian sections. This is again evident, as Ted believes there have not been media reports of people failing to receive adequate compensation for injuries. In contrast, I have noted that such examples are common in articles critical of caps.

The National Journal's review of malpractice plans by nonpartisan experts provided an objective comparison of the plans of John Kerry and George Bush. Their numerical scores are partially a gimmick to make the article more readable, but this does not diminish the significance of their conclusions favoring John Kerry's proposals. This nonpartisan group felt that John Kerry's proposals would do more than George Bush's proposals to reduce the squeeze on physicians despite opposition to caps. It is unnecessary to limit the rights of those who have truly suffered from negligence to reform the system and protect innocent doctors.

Ted's repeated arguments against compensation for victims adds credence to the belief often expressed by Democrats that the Republican goal is not really malpractice reform but to change the entire legal system so all industries beyond the medical profession to be virtually immune from responsibility for damages they cause. As I cautioned in a post above, the effects of George Bush's policies, and his ultimate goals, are often quite different than those he states. When viewed from the point of view of those who want to restrict all ability to obtain compensation for negligence of any cause, the prejudices expressed against John Kerry are more understandable, if misguided.

If the goal is to prevent those who have truly suffered from negligence from being able to receive just compensation, then yes, it is true that John Kerry and John Edwards are not on your side. However, for physicians who want true malpractice reform, John Kerry will do more for us than George Bush. John Kerry's plans will help to lower malpractice premiums, reduce physicians' risk from frivolous suits, and reduce the forces driving defensive medicine, without denying individuals their rights to receive fair compensation for injuries and without allowing the federal government to arbitrarily supersede the decisions of local juries. Under John Kerry's plans, we can do better.


Some corrections
By Ted Frank

This entry is essentially nit-picking, because I thought Dr. Chusid's latest post merits some corrections. The casual reader that may not care about minutiae over which study and what insurance executive said what, should skip to my next post, a discussion of the concept of "frivolous litigation" in the medical malpractice context.

I do need to make one correction on my side, however. I previously agreed with Dr. Chusid's assertion that the Bush plan created federalism problems. I was at least partially wrong. To the extent the Bush proposal mirrors the HEALTH Act of 2003 as passed by the House, §11(c) of that law has provisions that allow states to override the $250,000 non-economic damages cap with a different cap of their own choosing. The result is to change only the default rule; states will have considerable flexibility to decide for themselves that they want a different cap (or, effectively, no cap at all if trial lawyers can persuade a legislature to impose a meaningless cap of several billion dollars). The HEALTH Act of 2003 consists of much more than the controversial element of caps, including some elements in the Kerry-Edwards plan; when I discuss those elements, I'll point out the similarities in the legislation.

First, I'm not sure why Dr. Chusid keeps pointing to Texas malpractice insurance rates as evidence against medical malpractice liability caps. Such caps were not passed until Texas voters approved a constitutional amendment in 2003. The use of Texas as evidence against caps is especially ironic, as Texas's largest medical malpractice insurer, the Texas Medical Liability Trust, has reduced rates 17% in the year since reform passed, including an immediate 12% decrease. (The 35% rate increase mentioned in the Chronicle was a proposed increase from a different insurer, who correctly noted that it had faced a one-time surge in malpractice filings from plaintiffs' attorneys seeking to file suits before the new rules took effect. The increase never took effect, because the state regulatory board disapproved it--precisely because the regulatory board felt that tort reform should reduce rates.)

Second, in the past 30 years, the proportion of births by c-section has gone up fivefold (even as the rate of cerebral palsy has stayed constant). A 1993 study by Localio in the Journal of the American Medical Association showed that doctors who had been sued were much more likely to increase their rates of cesarean delivery. The idea that C-sections have declined in spite of pressure from the Senator Edwardses of the world to engage in unnecessary defensive medicine surgery seems incorrect to me, but I'm happy to be educated on the subject.

Third, I certainly would not liken the death of child with the death of a pet, and I don't think anything I said could be fairly interpreted otherwise. To the extent that needs clarification, I do so here. The problem I raise is rather one of incommensurability. If Kramer breaches a contract with Jerry to sell him a working car, it is easy for a jury to calculate compensation--how much money would it take to put Jerry in the same place if the contract was not breached so that he's effectively indifferent? But if Dr. Van Nostrand blinds Jerry, Jerry's damages are in many ways incalculable. The results will be incoherent, and inherently unjust.

Fourth, Dr. Chusid repeats (presumably from fact-sheets from the plaintiffs' lobby) a quote of Victor Schwartz out of context about a completely different piece of litigation. Schwartz corrects the record in this 2002 Congressional testimony, and makes clear that caps will have a beneficial effect on malpractice premiums. Other quotes indicate that insurers are stating that caps will help reduce the rate of increase of insurance premiums; this is surely a very real benefit.

Fifth, CBO's report also noted another study in the Quarterly Journal of Economics (called by Duke's Center for Health Policy, Law and Management the "most definitive study to date") that found defensive medicine savings of $69 to $124 billion nationwide could be achieved by tort reform. The CBO's conclusion on the relationship between tort reform and defensive medicine was that "the question of whether such limits reduce spending remains open, and CBO continues to explore it using other research methods."

Sixth, Dr. Chusid is correct when he says he was distinguishing between health-insurance premiums and malpractice premiums with his use of the 0.5% figure. But the 0.5% figure is only true if one accepts the premises that (1) malpractice costs consist only of malpractice insurance premiums and (2) caps affect only malpractice premiums, rather than also use of defensive medicine, willingness of doctors to remain in the profession (and the costs with reduced supply of personnel), and other miscellaneous costs associated with the current malpractice regime. I think it's fair to say that reliance on the 0.5% figure implies that one is understating the impact of malpractice issues.

Seventh, it's unclear to me why the Congressional Budget Office is a definitive source worth citing when one is willing to cite to its simple arithmetic estimate the effect of caps on medical insurance, but is only part of a "weak case" when the CBO has stated that caps will reduce malpractice premiums substantially. As I state above, I don't think caps are a solution to all of the problems of the current medical-malpractice system, I am confident that premiums will be lower with caps than without them, and I am confident that readers can parse the relative quality of evidence on both sides of the question.


What is "frivolous"?
By Ted Frank

With that out of the way, we can move on to the topic of how the two plans compare in dealing with what are sometimes called "frivolous lawsuits." We agree that caps are not a panacea for such lawsuits, however defined, but the question remains whether the Kerry plan can do better.

As an initial matter, the word "frivolous" needs to be explored. Problems arise because a number of tort reform proponents and people in the popular press use the term "frivolous" in the colloquial sense, as a synonym for "unsound" or "improper" or just simply as a shorthand for "bad as a matter of public policy." Opponents of tort reform cheerfully co-opt this term by also expressing their opposition to "frivolous" suits--but their use of "frivolous" is in the legal context, where even a completely meritless suit may not be "frivolous."

For example, if I were to sue a fast-food chain because I spilled hot coffee on myself, my suit would be meritless, it would be bad public policy to allow me to recover, and talk-show hosts everywhere would consider it frivolous--but my suit would probably not be "frivolous" under the law. Some states go even farther, and require a showing of bad faith before judging a suit "frivolous." I therefore try to avoid using the word, as it only confuses the debate; it is a practice I commend to proponents on both sides of the issue.

In my experience, when doctors express their fear or concern of frivolous lawsuits, their concern is about one or both of two kinds of suits: (1) lawsuits of dubious merit that take time and expense to defend oneself against, but which will eventually be resolved for a nuisance-value settlement or in favor of the defendant; and (2) lawsuits of dubious scientific merit where a doctor is unfairly accused with 20/20 hindsight of making a wrong decision, and where the testimony of an expert-for-hire is combined with the demagoguery of a plaintiffs' attorney and a misled lay jury to result in a large judgment against the doctor.

I think caps, at least at the margin, do much to reduce both kinds of cases, simply as a matter of economics. A lawyer will take a longshot case if there's a chance of a big result: that tail of the distribution increases the expected payout of a lawsuit, decreases the chance a risk-averse insurance company will fight, and increases the settlement value. I wouldn't claim that caps will reduce these two categories of lawsuit to zero, and resolve all doctors' grievances against the current medical malpractice system. But surely chopping off the tail and the chance of unmoored non-economic damages increases the quality of lawsuits that are actually brought, simply because it takes a more meritorious case with real damages in a world with caps than a world without caps before it becomes profitable to sue a doctor. Do you disagree?

Thus, before we continue to a discussion of the points of the Kerry-Edwards plan (on which, Walter Olson's Wall Street Journal article is an excellent starting point that I would have trouble improving upon), what do you mean when you say "frivolous lawsuit"? And what do you think Kerry and Edwards mean by the term "frivolous lawsuit"? Do you agree that either of the two categories of lawsuit mentioned above are a public policy problem and a deterrent to doctors practicing medicine? And, if so, why do you believe Kerry-Edwards plan will affect filings in these two categories?


Reviewing The Issues Rather Than Nitpicking
By Ron Chusid

Ted acknowledges that his entry entitled Some Corrections is essentially nitpicking. He questions a few of the facts but, even if he were correct in his objections to all of the facts he discussed, he has neither refuted the bulk of my argument or proven his. The fact remains that caps have not proven to be effective in reducing malpractice premiums or reducing malpractice suits. Rather than worrying about every minor disagreement on evidence, I'll limit to commenting on the main issues.

With regards to caps, the bulk of the data I provided is unchallenged, and there is far more evidence that caps have not been successful in resolving the malpractice crisis. According to Medical Liability Monitor, the average malpractice premium in states without caps was $35,016 in 2003 while the average premium in states with caps was $40,381. (Medical Liability Monitor, 10/03) According to Weiss Ratings, the median annual premium between 1991 and 2002 increased more in states with caps (48.2%) than in states without caps (35.9%) The report stated: "Doctors in states with caps actually suffered a significantly larger increase in insurance costs than doctors in states without caps." (Weiss Report, 6/3/03).

Disappointment with caps has been seen in many states. For example the director of the Ohio Department of Insurance said that despite caps on damages, the malpractice premium crisis is worse than ever. (Cleveland Plain Dealer, 2/20/04).

Consideration of both actual increases in rates and requests from malpractice carriers for rate increases are both meaningful. The size of requests requested shows that the situation would be far worse without restrictions on rate increases by mechanisms other than caps, something advocated by John Kerry but opposed by George Bush. Caps are primarily supported by the insurance industry as they clearly benefit from limitations on what they have to pay out. When caps have been implemented, insurance companies do not pass on their savings.

The 2003 Weiss Report found that despite caps on economic damages in 19 states, "most insurers continued to increase premiums [for doctors] at a rapid pace, regardless of caps." The report found that caps only slowed the increase in the size of awards insurers paid, and that insurers failed to pass along any savings to those physicians in states with caps by refusing to lower physicians` insurance premiums. Malpractice insurance carriers raise premiums all the traffic will bear, independent of their actual expenses. Often premiums increased to compensate for investment losses in recent years.

The data supporting caps remains ambiguous and often contradictory, but the data on the limited impact of caps on health insurance premiums is much clearer, with different studies yielding comparable results. With health insurance premiums increasing by double digits annually, it would take an error in these studies of a magnitude of 100 before President Bush's proposals would have any meaningful impact on health insurance prices. An error of this magnitude is highly unlikely. Caps are now present in several states. Besides not being sufficient to resolve the malpractice crisis, this has not solved their problems of rising health care premiums or of people without health insurance.

The other major area of disagreement is over the compensation for loses such as loss of a child or loss of vision due to negligence. Of course I realize that Ted does not liken the death of a child with the death of a pet, but the policies he advocates do not. The loss of a child is a devastating loss, and any difficulties in assigning a monetary value does not mean that we should not try, or that we should set an arbitrary value of zero. To expand upon Ted's example, we would both agree that if negligence on Kramer's part resulted in the destruction of Jerry's car, Jerry would be entitled to seek compensation. However, if Jerry had a daughter who was killed during the same act, Ted would not believe Jerry is entitled to any additional compensation. What if Jerry had some valuable artwork in the trunk of his car (or being Jerry, a valuable collection of Superman comics) which was also destroyed? Would Jerry's ability to obtain any compensation terminate should anyone complain that the value of his collectables is open to question?

Returning to caps, another problem is that they do not resolve the problem of frivolous suits, while this problem is specifically addressed by two aspects of John Kerry's proposals for malpractice reform. I will discuss this further in my next entry.


One last word on caps and premiums: problems with the Weiss Ratings report
By Ted Frank

It's worth noting that the two pieces of evidence that Dr. Chusid cites is actually two conclusions from one single Weiss ratings study -- and a severely flawed study at that. Several of the states that Weiss grouped in its "capped damages" group had caps several times greater than the $250,000 caps at issue here. Worse, more than half the states in the Weiss study's "cap" group did not have caps in 1991, the baseline year from which it is measuring insurance rate increases. Other results were manipulated by using median figures instead of means. Weiss Ratings also failed to account for the fact that policyholder dividends were more common in 1991 than in 2002.

In short, the Weiss Ratings study has no credibility whatsoever. Indeed, in a July 7, 2003 e-mail to Senate Majority Leader Frist, Medical Liability Monitor editor Barbara Dillard objected to the "misleading" data in the Weiss Ratings study. The National Practitioner Data Bank also objected to the Weiss Ratings misuse of its data.

The American Academy of Actuaries, which has no dog in the lawyers vs. doctors fight, and takes no official position on tort reform, has submitted congressional testimony that such caps will reduce insurance rates. (The testimony also rebuts the Kerry-Edwards urban legends that the stock market, rather than increased liability awards, are responsible for the crisis.)

Dr. Chusid tells only a misleading fraction of the story of Ohio. Caps did not pass there until 2003, and Ohio Department of Insurance Director Ann Womer Benjamin has expressed no disappointment whatsoever: rather, she stated that one could not expect to see results immediately, as opposed to five to ten years down the line. The ODI certainly does not oppose caps; rather, it calls them an important step in resolving the malpractice crisis.

One reason state caps don't take effect immediately (except, as in Texas, where they are enacted into the state constitution) is that the plaintiffs' bar immediately challenges them in court, and insurance companies cannot be sure that the caps won't be retroactively repealed by an activist plaintiff-friendly court. (It was years before California's caps were affirmed by its court system.)


Reviewing the Evidence on Caps
By Ron Chusid

The insurance industry has a huge stake in caps. Whether or not they help physicians, insurance companies clearly benefit from lower payouts, Therefore the insurance companies, aided by conservative think tanks, have worked hard to discredit any evidence against them. The criticism of the Weiss Report, not surprisingly, originated from an insurance trade organization.

Others are not so quick to question their findings. For example, when the Knight Ridder newspapers reviewed their findings, they found them corroborated by facts such as that, although Kansas adopted a $250,000 cap in 1991, "Annual insurance premiums, however, have jumped a whopping 59.1 percent, from $14,669 in 1991 to $23,335 in 2002." (Witchita Eagle, 6/21/03)

This could easily go back and forth with opposing opinions as I'm sure that Ted and I both have many more quotes on either side of the issue. This just reinforces the fact that any evidence in support of caps remains murky and controversial.

Ted inadvertently points out another argument against caps. There is considerable fear that caps will be overturn in court, making them less effective. Caps are unlikely to change the behavior of insurance companies (with regards to increasing rates) or of doctors (in practicing defensive medicine) if nobody has confidence they will hold up in court.

Ted is both distorting the counter arguments and again mixing apples and oranges when claiming that his evidence "rebuts the Kerry-Edwards urban legends that the stock market, rather than increased liability awards, are responsible for the crisis." We do not claim that the malpractice crisis is due to the stock market. What is true, and was argued by others well before Kerry and Edwards began campaigning, is the correlation between rate increases (as opposed to an entire malpractice crisis) and declining investment income. It is no secret that insurance companies historically have made a substantial profit from investing money received in premiums. Increased premiums represented one way to offset the loss of this income source following the market crash. The loss of such stock market earnings does not account for problems such as frivolous suits, but has been one of the factors which have driven premium rate increases.

Hopefully we can now dispense with the nit picking and I can continue work on the more important issue of how Kerry's plan addresses a major failing of President Bush's plan with regards to directly addressing the problem of frivolous suits.


A disappointing turn in the debate
By Ted Frank

Imagine if an expert witness trumpeted a study claiming to show that polio vaccinations are ineffective; in response, a doctor notes that the study shows no such thing because it includes numerous unvaccinated individuals in the statistics of the vaccinated. Would Dr. Chusid be persuaded by an expert who responded by pooh-poohing the counter-argument because it was developed by the medical establishment? I should think that a defense of the plainly flawed methodology of the Weiss Ratings report against my rebuttal (and, again, Dr. Chusid makes the mistake of relying on median figures for Kansas, rather than mean--why is it relevant that a newspaper quoted the flawed Weiss Ratings report numbers verbatim?) would be more important than noting that a group consisting of insurers owned by doctors and dentists made the same criticisms first. (For what it's worth, I am not a parrot; I agree with only some of the PIAA's criticisms, and make arguments only when they are consistent with my independent analysis.) Dr. Chusid is trained to look at questions scientifically, and the resort to the sophistry of the ad hominem in response to a falsifiable proposition is beneath him.

Similarly, the careful reader will note that I have not engaged in a battle of the quotes. I am relying on studies by political institutions and in the medical and economic literature, and have discussed quotes only where necessary to rebut incorrect claims that a quoted organization or individual said something they didn't. (For example, contrary to Dr. Chusid's denial, official Kerry-Edwards speeches have explicitly sought to shift blame for rising malpractice insurance rates from the actions of attorneys to the "declining stock market." In fact, malpractice insurance rates are directly related to payouts on malpractice claims.)

Finally, it is disappointing that, immediately after I note that the term "frivolous lawsuit" is unhelpful to the discussion because of the wide variety of potential meanings for the term in the law and in common usage, Dr. Chusid simply repeats the trope that the Kerry plan will "address[] the problem of frivolous suits." Perhaps, but perhaps not. I await, and I imagine hundreds of thousands of doctors await, learning what Dr. Chusid and the Kerry-Edwards campaign consider a "frivolous lawsuit," because it will do much to determine whether the Kerry-Edwards plan will address the lawsuits that actually concern doctors, or whether it is a Potemkin reform meant to blunt criticism of the water Senators Kerry and Edwards have carried for the plaintiffs' lobby. I also await a rebuttal of my analysis why caps reduce the types of unfair lawsuits that most concern doctors (as preliminary anecdotal evidence in Texas shows), rather than the bald assertion that they will not. I look forward to those discussions.


Reducing Frivolous Suits
By Ron Chusid

Reducing the risk of a physician facing a frivolous suit is a major advantage which Kerry's malpractice proposal has over George Bush's. I understand that Ted has some objections to the use of this word, but we have become bogged down in minutiae since my post of two days ago, and, being the end of the week, I think we need to stick with the main issues. I'm sure readers are more interested in determining which candidate's proposals will do the most to resolve the malpractice situation as opposed to seeing a debate over definitions. As both sides use this term and claim to desire to reduce frivolous suits, I think use of the word remains fair. Doctors don't care whether an unfair suit against them is technically frivolous. We are more concerned with reducing the risks of such suits.

A major difference between Kerry's plan and Bush's plan is that John Kerry's plan directly addresses the problem of frivolous suits in more than one way, while Bush's plan hopes to reduce frivolous suits indirectly and even backwards. Rather than dealing directly with frivolous suits (where generally there is not a victory for the plaintiff), caps affect suits where the plaintiff has won, which are less likely to be frivolous. Under George Bush's plan, we must hope that the prospect of collecting the attorney's share of economic damages plus a potential $250,000 would be insufficient for attorneys to take malpractice cases. This is quite a lot to hope for. Even if less potential return is enough to prevent some lawyers from taking a case, there will most likely be others who are interested. Many take suits where the award is well under this amount. Considering that less than two percent of suits wind up in an award to the plaintiff, such economic factors do not appear likely to keep attorneys from accepting cases where there is a cap on non-economic damages.

For many professions, going to court is an every day aspect of doing business. The medical profession does not see it this way. The doctors in the 98% of cases who wind up victorious would still see having been sued as a problem, and would still hope for changes to avoid being sued at all. A doctor who is sued would certainly prefer to win, and if they were to lose would prefer a smaller award against them as opposed to a larger one, but the primary motivating factor for physicians is to avoid being sued, period.

Under John Kerry's plan, pre-trial review would be necessary to ensure that a suit is valid. This would be the first step in weeding out the frivolous cases. Many states have shown success in reducing suits using a variety of types of reviews. Ted brought up (in an article linked to his entry) a case where a physician was successfully sued despite following current standards of care. Review by medical experts might have thrown out such a suit before an attorney would have had the opportunity to persuade a jury on more emotional grounds. There is no reason to believe that George Bush's proposals would have prevented such a suit from being filed. (As a comment on this suit, it appears that the jury misunderstood the meaning of evidence based evidence, being led to believe it is a scheme to lower costs rather than to provide high quality care based upon the best medical information available. This was an isolated case which cannot be the basis for devising a solution to the malpractice problem).

Personally I saw that pre-trial review is successful when a patient once tried to file a suit against me. The patient was suing based upon problems which arose from chronic medical problems over a year after I last saw him, with no plausible connection between my care and the problems he faced. I received a notice of intent to sue but, due to lack of evidence of having a valid claim, the patient could not proceed to filing suit.

To an attorney it might seem to be a trivial difference between having a suit dropped in such pre-trial review and of having a suit dropped after filing suit. To a physician this is a big difference. As the patient could not file suit, the pre-trial phase took little of my time. I did not face the mental anguish or stigma which is faced by physicians who are actually sued. Nor do I have to write an explanation for why I was sued every time I apply for hospital or HMO privileges. This undoubtedly was also a lot less expensive for the insurance company than if they had to defend a formal suit. They did not have the costs of numerous depositions, expert witnesses, and of a trial.

As physicians have a strong aversion to being sued, the high prospect of winning a suit does not inhibit physicians from practicing defensive medicine. Similarly, the knowledge that there is a limit on loses for non-economic damages would not be enough to a physician to refrain from practicing defensive medicine. However, a physician might feel safer knowing that if someone attempted to sue, they first had to present evidence of the validity of their claim.

One common fear of physicians is of the type of attorney, which every town seems to have, who will file a suit at the drop of a hat. They likely advertise on television, and seek out numerous cases in the hopes that they will get lucky with some of the cases brought to them. Perhaps some will settle to avoid going to court and they will make a quick profit. Caps would have no influence in such situations, but having to prove the validity of a case in pre-trial review would offer real protection.

No system is perfect, and pre-trial review will not weed out all frivolous cases. Kerry and Edwards have made proposals to account for this eventuality. They would allow for sanctions against plaintiffs and attorneys who file frivolous suits, including a "three strikes and you're out" rule to prevent attorneys who have filed repeated frivolous suits from filing suits for ten years.

Pre-trial review and sanctions against those who file frivolous suits directly address the problem, while George Bush's proposals do not. Kerry and Edwards seek to resolve the malpractice problem with a variety of pragmatic measures which directly address specific problems, rather than hoping that indirect measures will result in the desired goal. I have already discussed the problem of hospital deaths and injuries due to systems problems in medical facilities. Systems errors can lead to suits against physicians for reasons beyond their control. Kerry and Edwards have recommended working to reduce these types of errors, which would also reduce the risk of suits.

In addition to these measures, Kerry would also eliminate most punitive awards. They would change laws which give the insurance industry exemptions from ant-trust laws which allow them to limit competition and to set artificially high rates. Perhaps this is why the insurance industry is so strongly supporting George Bush. John Kerry has already stated he is willing to offend trial lawyers if necessary for his plan to work, but George Bush shows no sign of standing up to the insurance companies.

John Kerry's goal is to pragmatically look at the situation and then fix the problems caused by malpractice. We don't have to hope that caps will indirectly result in the desired goal. John Kerry has indicated a desire to resolve the malpractice crisis, and is willing to take additional action if his solutions do not solve specific problems. I have already discussed a variety of proposals, including pre-trial review and sanctions against those who file frivolous claims. If there are problems which are not addressed by these proposals, the Democrats have expressed a willingness to consider other solutions, such as tax credits to compensate physicians who have excessive increases in malpractice premiums. This would both help the affected physician directly, and reduce the risk of physicians leaving a particular specialty or location due to the cost of malpractice insurance.


The Kerry-Edwards plan: soundbites, but no reform
By Ted Frank

Dr. Chusid repeatedly claims that the Kerry-Edwards plan will supposedly "[r]educ[e] the risk of a physician facing a frivolous suit." But he refuses to say precisely what the candidates mean by "frivolous suit." Dr. Chusid tries to dodge the question by calling it one of "minutiae." But this is not trivia: it is the centerpiece of the issue, and is the difference between real reform and fake reform. Does the Kerry-Edwards plan address the lawsuits that doctors are most concerned about, or is it an empty soundbite to neutralize an issue where the two have a poor track record?

As I discussed earlier, when laypeople speak of frivolous malpractice suits, they are talking about the meritless suits that cost doctors money to defend and, worse, often unfairly tar doctors with malpractice verdicts through pseudo-scientific expert testimony and demagogic second-guessing; caps will reduce the profitability of such tactics, and thus reduce the incentive to engage in such suits. Dr. Chusid's counter-argument--that caps can only have an effect on the 2% of plaintiffs who reach a favorable verdict--relies on the assumption that caps would have no effect on doctors' ability to settle malpractice cases. But, in fact, under the current system, it is the threat of a large jackpot judgment that forces insurers to settle a meritless case. It's clear that caps remove this extortionate aspect of the settlement value of the case. Only if one posits that plaintiffs' lawyers are irrational will one be able to claim that caps will not reduce malpractice litigation. The fact that the plaintiffs' bar is feeding millions to politicians and advertising to stop the trend of caps is evidence that the plaintiffs' bar knows the adverse effect caps will have on Trial Lawyers Inc., and the benefits that will redound to the rest of us.

Still, Dr. Chusid insists that the Kerry-Edwards plan will stop "frivolous lawsuits." If this is so, and it can be done without the occasional problem caused by caps, perhaps it is worth a try. But the problem is the disconnect between the colloquial and the legal meaning of the word "frivolous." A case can be completely meritless, but not frivolous under the law, so long as it was not brought for purposes of harassment or other "improper purpose." So are the "frivolous lawsuits" that the Kerry-Edwards plan purports to address something meaningful, or is the use of the term a narrow equivocation? Dr. Chusid's refusal to answer the question perhaps gives a hint. Fortunately, we don't need to guess very hard. Senator Edwards co-sponsored a medical-malpractice "reform" bill, S. 1374, that addressed this very question. To qualify as "frivolous," a lawsuit must

(1) be presented for an "improper purpose"; and
(2) neither be "warranted by existing law" nor by a good-faith "argument for the . . . modification . . . of existing law"; and
(3) have no evidentiary support nor reasonable assumptions "based on a lack of information or belief."

Clearly, this is not the category of cases that is causing a malpractice crisis and runaway awards. The number of medical malpractice cases that are "frivolous" under this restrictive definition is extraordinarily low; the number of cases that Kerry-Edwards consider "frivolous" that are in the system today that are not addressed by existing laws is close to, if not precisely, zero. The Kerry-Edwards plan's attack on "frivolous litigation," unless substantially different than the legislation previously co-sponsored by Edwards, will do nothing to reduce malpractice litigation, much less the malpractice litigation that most concerns doctors.

But the Kerry-Edwards plan's reform is even more illusory than that. Recall that one of the planks of the plan is to require "certificates of merit" that a qualified medical specialist has approved a case. This is a low bar: to survive a summary judgment motion, a plaintiff needs to present expert medical testimony of malpractice. Moving the requirement earlier in the process does nothing to prevent attorneys from continuing to hire professional testifiers. Moreover, the "certificate of merit" effectively inoculates attorneys from any finding that they've filed a "frivolous" suit under the S. 1374 definition of "frivolous"--virtually the only exceptions would be presenting fake evidence to the "qualified medical specialist" or a forged certificate of merit. The "three strikes and you're out" plank of the Kerry-Edwards plan becomes essentially toothless, imposing sanctions on only the most foolish and incompetent of lawyers. The lawyer who wins $23 million by persuading a jury to adopt the fiction that cerebral palsy is caused by failure to perform a C-section remains unaffected.

The Kerry-Edwards plan announces that it will bar punitive damages "unless intentional misconduct, gross negligence, or reckless indifference to life can be established." Unfortunately for those who wish to claim that this is tort reform, in just about every state punitive damages require a showing of conduct that is intentional, grossly negligent, or reckless--and some states require a greater showing than that. It is simply not true, as Dr. Chusid claims, that this proposal will resolve "most" punitive damages.

The Kerry-Edwards plan seeks to repeal the McCarran-Ferguson Act. Why this is a short-sighted idea is far too complex to be explored in this space. But the concept is based on the myth that the malpractice insurance problem is a function of evil insurance companies rather than the billions insurance companies are paying to lawyers because of the malpractice litigation crisis. The main effect on malpractice insurance by repealing McCarran-Ferguson would be to "undermine the risk sharing industry's ability to classify and share risk", increasing the expected cost of insurance, and making health care more expensive for everyone.

We have no details on what the Kerry-Edwards plan mean by "non-binding arbitration." But doctors have reason to be wary. As Walter Olson noted, one Democratic proposal for non-binding arbitration in the House of Representatives, H.R. 1219,

turned out on inspection to include a kicker that would have pre-empted and invalidated all forms of alternative dispute resolution other than mediation--including arbitration programs that work well in some states in forestalling litigation--as well as all contractual barriers to suit.

Even if a party unambiguously won the arbitration, the losing party could reject it and proceed to trial--and exclude the findings of the ADR from evidence at trial. State taxpayers would likely end up footing the bill for the fruitless mediation because of the unfunded mandate that the mediation be "affordable" and "reasonably convenient." Such a bill would unambiguously make the malpractice litigation crisis worse. Recall that the benefit of caps was that it reduced settlement pressure on doctors; by reducing settlement pressure, one reduces the number of lawsuits. In contrast, Kerry-Edwards, by forcing doctors to go through an additional level of litigation through mediation, while potential damages remain uncapped, makes it more expensive to litigate, which increases settlement pressure. The prospect of increased settlement pressure will increase the number of malpractice lawsuits, and the problem will get worse.

The late-night-comedy stereotype is that Bush is shallow compared to Kerry as a candidate of substance. But when it comes to medical malpractice reform, it is Kerry who is resorting to what is at best an empty soundbite of "stopping frivolous litigation" and at worst a counter-productive proposal that will benefit noone but attorneys. The Bush administration has proposed a concrete plan that will reduce malpractice insurance rates, end the malpractice lawsuit lottery, reduce unfair malpractice litigation, and, by thus decreasing the number of good doctors forced to leave practice, improve medical access for the public at large.


A Final Look at Erroneous Assumptions
By Ron Chusid

I started this discussion with a look at preconceptions, and as we wrap up this discussion, I note there remain several fallacious assumption underlying Ted's criticism of Kerry's health care proposals. He begins by once again dwelling on the definition of frivolous. He give excessive significance to the definition of frivolous by incorrectly assuming that only a certain type of frivolous suits will be prevented under Kerry's plan. Discussing frivolous suits on the stump is a convenient shorthand which most listeners understand, but planned reforms are not limited to cases which fall under a specific definition. Ted is mistaken when he assumes that only narrowly defined cases will be covered in Kerry's proposal. One point of developing a system of pre-trial review is to develop a mechanisms and appropriate criteria to allow medical experts to decide what types of suits might proceed to trial.

Much of the argument against Kerry's proposals is based upon the campaign proposals not being as detailed as final legislation. This is a rather specious argument as a political campaign is the time to provide a broad description of a candidate's goals and desires, not to propose legislation in detail. To criticize Kerry's proposals for not containing all the detail we would expect in proposed legislation is an unfair standard, which no challenger would ever meet on any issue of significance.

In considering possible legislation coming out of Kerry's proposals, Ted shows a double standard. While he gives Bush the benefit of the doubt on every point, even when the data is questionable, Ted gives a worse case scenario is his predictions for Kerry's policies. He gives a number of objections not to Kerry's underlying proposals, but to the type of legislation he anticipates his proposals would result in. However, potential problems which he mentions could be taken into account in the drafting of specific legislation. Measures directly written to reduce frivolous suits (which will not necessarily be limited to the narrow grounds stated by Ted) are more likely to be effective than such indirect measures as caps which do not address the problem of frivolous suits.

In reading his objections, the bottom line appears to be that Ted does not believe Kerry wants to resolve problems related to malpractice. I dealt with this faulty assumption in my initial post. Ted's argument has remained circular. He argues that Kerry's is not serious about malpractice reform as is seen in his record and proposals, but his main objection to Kerry's proposals remains the underlying belief he does not really intend to address the problem. The examples Ted gave with regards to Kerry's record are irrelevant, relating to other areas of law which Kerry has never claimed to agree with Republican reforms, as opposed to malpractice reform which is a major component of his health care proposals. Ted again brings up the choice of Edwards as running mate, with the false assumption that the choice of Edwards is an indication of opposition to malpractice reform. There were many reasons for choosing Edwards, from his style of campaigning to his southern background, with no reason to believe that the decision had anything to do with tort reform. Ted remains unfair to John Edwards, again criticizing cases he argued despite the cases having been found to be valid by medical reviewers based upon the scientific knowledge and standards of care of the time. At most, if his critics are correct, he might be "guilty" of failing to review the medical literature of the future. He also assumes an attorney can only see one side of an issue, when in reality a good attorney will be knowledgeable of both side. As Kerry's proposals for malpractice are turned into proposed legislation, and as it is the President's priorities which would prevail in a Kerry administration, having someone with Edwards background will be valuable.

Another assumption which must be challenged is that the driving force behind attorneys is the desire to hit the jackpot to the degree that attorneys will avoid cases without such potential. Ted has admitted that such cases are the exception when he expresses concern that they drive the malpractice crisis. While it is likely that attorneys would love to hit the jackpot with cases with a high pay out, economic considerations force attorneys to accept the every day bread and butter case. It is doubtful that the limits from caps would make malpractice so lucrative that attorneys will abandon the field, or be more selective about the cases they accept.

Ted's argument assumes that caps are an essential component of any malpractice solution, representing the greatest difference in the approaches of George Bush and John Kerry. In reality, ideas such as those proposed by Kerry, especially pre-trial review and regulation of insurance rates, rather than caps, have been credited for the successes of malpractice reform in states where they have been tried. I have also personally experienced the benefits of pre-trial review and therefore have no doubt as to its value. National Journal's bipartisan panel of reviewers ranked Kerry's proposals above Bush's, which lends credence to the belief that Ted is opposing Kerry's proposals not on their merit but because they come from the opposing campaign. Ted gives the benefit of the doubt to Bush's proposals although it appears unlikely they will impact many components of the malpractice problem, while assuming the worst case scenario for Kerry's proposals.

Ted attributes ulterior motives to Kerry, writing as if Kerry is being deceptive when he makes promises of wanting to reform malpractice. While a personal conversation is no guarantee of sincerity, Kerry was convincing in his desire to reform the problem when I had the opportunity to discuss it with him in August. In contrast, George Bush gives greater reason to suspect ulterior motives. The large amount of contributions from the insurance industry present one reason to question the degree of his support for caps, considering how they benefit the insurance companies far more than physicians. I say this not to vilify insurance companies in the way that George Bush vilifies attorneys, but to point out normal human motivations which undoubtedly play a factor. Kerry has already acknowledged the relationship between trial lawyers and the Democratic Party, insisting that this will not prevent him form proceeding with malpractice reform. Another potential motivation for the Republican concentration on caps is raised by conservative thought leaders such as Grover Norquist who has repeatedly recommended such actions. He has expressed hopes of destroying the trial lawyers, arguing this is a way to eliminate a source of contributions for the Democratic Party as part of his goal of a one party nation. I also would argue that there is greater reason to question President Bush's sincerity based upon his past actions, as so often there is a major difference between his words and the results of his policies. Physicians have seen this in President Bush's Medicare drug bill, which provides limited prescription benefits along with measures which greatly benefit (surprise!) insurance companies and threaten the long term survival of Medicare. We have also seen this with the war on terrorism becoming the war in Iraq, and no child left behind turning into punitive measures against public education to provide excuses for a voucher system. Clean air under George Bush becomes a license to pollute, and defense of marriage is thinly veiled gay-bashing.

The assumption that the candidate is not sincere in his proposals cuts both ways, and I would maintain there is a far stronger case that his could apply to George Bush. It is far better to evaluate the proposals on their own merit rather than to do so based upon one's overall impression of the candidate.

Kerry's recommendations to abolish most punitive awards are only relevant in certain states, but Republican advocates of tort reform have also been calling for this. Some states, such as Georgia, allow the state to take a portion of such awards, which encourages abuse to areas beyond what would normally be considered punitive. In failing to consider the benefits of preventing such large and unjust awards, Ted is contradicting his previous statements in which he claimed that it is the occasional large settlement which drives the malpractice problem. While this contention is questionable, preventing such unfair punitive awards is still of value.

Arbitration is hoped to reduce costs but again Ted makes assumptions to reject another of Kerry's proposals. While there is no reason to expect that arbitration will work as Ted predicts, there is nothing to prevent changing policies on arbitration if it should not turn out to be successful.

This highlights a major difference between Bush and Kerry's proposals. Ted's unwillingness to consider proposals other than Bush's greatly reduces the chances of developing true and effective malpractice reform. While Ted takes a dogmatic stand that only Bush's proposals are helpful, Kerry is willing to consider a variety of pragmatic solutions. The goal is to relieve the malpractice crisis, not to arbitrarily defend a single approach. While the track record on caps has become questionable once they were put in place, proposals such as Kerry's appear to have the promise of improving matters. If the choice is of pre-trial review or of caps, as a physician I would much prefer pre-trial review. Pre-trial review can keep weak cases out of the courts, while the reduced chance of winning the jackpot with an individual case is less likely to prevent an attorney from filing a case. While Ted rejects all of Kerry's proposals, Kerry's pragmatic approach does leave open multiple avenues of reform. During the American University Health Care Summit in September, a representative of the Kerry campaign even expressed the willingness to consider caps if other measures should fail. There is also an increasing number of states which are adopting caps, making it less necessary for physicians who hope for caps to need to support Bush to achieve this.

I have also previously discussed other benefits of Kerry's malpractice proposals, including correction of problems in medical systems which increase deaths and injuries in hospitalized patients, increasing the risks of doctors being blamed for problems not under their control. Kerry is far more likely than George Bush to look at the impact of exemptions from anti-trust which allow insurance companies to both restrict competition and to raise rates beyond what is required to meet expenses.

As a physician I find John Kerry's proposals superior to those of George Bush as they more clearly address more aspects of the malpractice problem. The malpractice crisis can be divided into four main components to consider the impact of each plan:

1) Cost of malpractice insurance: If caps have any benefit, they would be in reducing malpractice insurance premiums, but experience has made this unclear. While there is likely some benefit here from caps,they come at the cost of penalizing those who are truly harmed by negligence. As I discussed previously, damages including loss of vision (beyond job-related loses) and loss of a child would be non-economic and have an artificial limit place upon them--imposed by the same politicians in Washington the Republicans claim to distrust. If the goal is to reduce the cost of malpractice insurance, then there are alternatives, as advocated by John Kerry and John Edwards. Should these measures not be sufficient, Democrats from James Carville to John Edwards have suggested tax credits for physicians who face excessive increases in malpractice premiums.

2) Frivolous suits: John Kerry's proposals are the clear winner here, as they directly address the problem, rather than hoping that attorneys will decide against filing malpractice suits if there is no longer the potential for a settlement consisting of their share of economic damages plus up to $250,000 in non-economic damages. Most likely, even with these limitations, malpractice would remain more lucrative than many other areas of law. Any attorneys who leave malpractice for other fields would quickly be replaced by others. Kerry's proposals to take action against attorneys and plaintiffs who file frivolous suits would most likely only be effective in the more egregious cases, but Ted again shows a double standard. He has stressed certain types of unusual cases as being the rational for his proposals, but ignores the significance of cases which Kerry's proposals would apply to. Many doctors have experienced patients who are clearly hunting for a reason to sue, and many towns have second-rate attorneys who terrorize the local doctors with threats of frivolous suits.

3) Defensive medicine: Even if malpractice insurance premiums were lowered by George Bush's proposals, doctors would remain as reluctant to risk being sued as they currently are. Without real mechanisms in George Bush's proposals to screen out frivolous suits, doctors would have no motivation to practice any less defensively. Kerry's proposals are again the winner here. Pre-trial review would give physicians more confidence that frivolous suits would be less likely to be brought against them if they followed established practice guidelines.

4) Cost of private insurance: George Bush's main claim for a way to reduce health care costs is malpractice reform, blaming malpractice for the current cost of medical care. The Congressional Budget Office's estimations on the impact of malpractice reform on health care costs are far more meaningful than their predictions on the effects of caps as they deal with current expenses rather than predictions about future behavior. The CBO has shown that malpractice accounts for only 2% of health care costs, and that even if caps did succeed in lowering malpractice premiums, this would lower health insurance premiums by less than half of one percent. This is worthless in an era of double digit increase, with John Kerry's proposals again doing far more.

Doctors have historically tended to support Republicans, but, considering the policies of George Bush, it is time to look at alternatives. During a local medical society meeting I attended last week,a member stood up and gave a long list of recent acts of the federal government which are unfavorable to physicians. He announced he is on the ballot as an independent candidate for Congress, saying this was a way to vote for someone other than the Republican incumbent without "resorting" to supporting a Democrat. I couldn't help but note that the Republicans are in control of all three branches of government, and are responsible for the problems he recited. He was correct that we must vote for someone other than the incumbent Republicans, but the only realistic alternative is the Democrats if we want change. With that in mind, physicians must be willing to openly consider the proposals of Democrats, even if they have never supported a Democrat in the past. Only by giving the Democratic candidates a fair hearing, and by showing a willingness to look at their proposals objectively, can we hope to find an alternative to our current problems. If you dislike what you see in the federal government, don't be fooled by the Republican rhetoric of running against the government, because they are the government, and have become the problem.



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THIS MONTH'S DISCUSSION'S ENTRIES
ELECTION 2004

Election 2004 Special; links down, James R. Copland, September 16, 2004, 01:05 PM

Overcoming Preconceptions on Democrats and Malpractice Reform, Ron Chusid, September 20, 2004, 01:31 AM

Nixon went to China, but Kerry-Edwards didn't go to Madison County, Ted Frank, September 20, 2004, 12:12 PM

The Preconceptions About Kerry Remain Unfounded, Ron Chusid, September 21, 2004, 01:15 AM

In defense of caps, Ted Frank, September 22, 2004, 12:30 AM

We Can Do Better Than Caps, Ron Chusid, September 22, 2004, 06:18 PM

Some corrections, Ted Frank, September 23, 2004, 06:10 PM

What is "frivolous"?, Ted Frank, September 23, 2004, 06:11 PM

Reviewing The Issues Rather Than Nitpicking, Ron Chusid, September 24, 2004, 01:10 AM

One last word on caps and premiums: problems with the Weiss Ratings report, Ted Frank, September 24, 2004, 06:06 AM

Reviewing the Evidence on Caps, Ron Chusid, September 24, 2004, 10:42 AM

A disappointing turn in the debate, Ted Frank, September 24, 2004, 08:21 PM

Reducing Frivolous Suits, Ron Chusid, September 24, 2004, 09:16 PM

The Kerry-Edwards plan: soundbites, but no reform, Ted Frank, September 27, 2004, 04:47 AM

A Final Look at Erroneous Assumptions, Ron Chusid, September 28, 2004, 12:27 AM


FEATURED DISCUSSION ARCHIVE:


Obamacare Decision: Reactions, July 2012
Law School Faculty Diversity, May-June 2012
Class Actions, May 2012
Constitutionality of Individual Mandate, March 2012
Human Rights and International Law, February-March 2012
The constitutionality of President Obama's recess appointments, January 2012
Do caps on medical malpractice damages hurt consumers?, December 2011
Trial Lawyers Inc.: State Attorneys General, October 2011
Wal-Mart v. Dukes, April 2011
Kagan Supreme Court nomination, May-June 2010
Election roundtable, November-December 2006
Who's the boss, September 2006
Medical judgement, July 2006
Lawyer Licensing, May 2006
Contingent claims, April 2006
Smoking guns, July 2004

 

Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.