Friday, August 28, 2009

It seems I was wrong

About tort reform in my post, Reconcile yourself to these truths about healthcare : it cannot be done; the trial lawyers are too powerful for Congress to take on. Who says so? Not Rush Limbaugh or Glenn Beck- Howard Dean says so.


Chalicechick said...

Ummm... Works for me. The law job market is shitty enough.

PG said...

Dean didn't say that trial lawyers are categorically too powerful for Congress to take on (after all, Congress has done plenty of stuff plaintiffs lawyers didn't like, e.g. PSLRA and SLUSA), but rather that it was politically unwise to create a whole new set of enemies against this legislation. That's the meaning of:
Here's why tort reform is not in the bill. When you go to pass a really enormous bill like that, the more stuff you put it in it, the more enemies you make, right? And the reason tort reform is not on the bill is because the people who wrote it did not want to take on the trial lawyers in addition to everybody else they were taking on. That is the plain and simple truth.

Your original posts's #6 should explain how Texas could pass tort reform (via constitutional amendment, no less) and still have such high costs. I don't know any physicians personally who have had a malpractice case succeed against them; I know one who has settled such a case before it went to trial because his insurance company pushed him to do so (and ever since they have been raising his rates), while the other doctor involved in that case went to trial and won. In other words, if the settling doctor hadn't following his malpractice insurer's advice, he wouldn't now be stuck paying them more money. Funny how that works, eh? Also funny: how malpractice insurance rates go up and down depending not on the payouts to litigants (which have stayed fairly constant in the last 20 years) but inversely with the ups and downs in the stock market, into which of course insurers' capital is invested in order to make a profit. We had the about the same rates of litigation and amounts of payout in Texas in 2000-02 that we'd had 1992-1999, but somehow it was just when the tech bubble burst and the market had a downturn that insurers realized they needed to increase premiums -- because of all the malpractice payouts, of course.

I wish the same state agency that certifies and de-certifies physicians were also in charge of malpractice insurance, running it on a non-profit basis. Then it wouldn't take almost 100 lawsuits, $13 million in settlements and jury awards, a cocaine possession conviction, and a few dead bodies to put rotters like Eric Scheffey out of the medical business. Doctors get a lot better about policing each other if the failure to do so will result in a direct cost to themselves instead of another opportunity to whine about evil plaintiffs' lawyers.

Incidentally, other countries don't have this problem with "excessively" large awards -- not because they don't have malpractice, or because they don't have lawsuits, but because they don't have juries for civil matters. Just repeal the 7th Amendment for federal trials, and any equivalents at the state level, and have judges rule on all of these. Less layman involvement = more rational awards that aren't tied to how cute the baby was before someone messed up in the NICU.

Joel Monka said...

I don't know about the Texas situation, but both of your suggested reforms make sense to me. One of the other ways lawsuits and insurance affect medical costs is with the manufacture of medical equipment. In this article about liability, medical devices were specifically mentioned: "The increase in frivolous product liability suits has also stunted the growth of new industries. In the 1990s, so high was the risk of future product liability suits that Union Carbide withdrew its efforts to manufacture a suitcase-size kidney dialysis machine." I know that when one of my uncles got a pacemaker, it cost more than my brand-new Plymouth Horizon- not the operation, the pacemaker itself.

PG said...


The problem in getting my first and more viable reform passed is that it's ZOMG SOCIALISM: state-run malpractice insurance, instead of the private sector kind.

The problem in getting the second passed is that the people who rail against trial lawyers have not done a very good job railing against the folks who actually make the awards: jurors. Bringing America's civil legal system in conformity with the rest of the world (I don't know of any other country that has juries in civil trials) would require laypeople to concede that they don't know enough about science -- physics of malfunctioning automobiles; biology of a baby born with autism; chemistry of how a drug will interact with other drugs -- even with competing experts telling them five different things, to be able to render a sensible judgment. A lot of judging is actually quite specialized: five guys in Delaware handle the majority of corporate law and most of the rest of the country just follows their lead; NY has "business courts" to try to replicate DE's success; federal courts are specialized to handle tax, bankruptcy, antitrust, patent and other complex matters.

But I assume the Founders had a reason why it was important to them to guarantee a right to a jury in a federal civil trial for amounts over $20 -- something that very much broke with English legal tradition -- and I think it would be quite difficult to get laypeople to give up that right.

I didn't find the article entirely impressive.

(1) It refers to "frivolous lawsuits" without defining the term. Lawsuits that a judge found frivolous and dismissed with prejudice (or even Rule 11 sanctions)? Lawsuits that the author felt didn't have a sound basis in science?

(2) It explains a 1998 Clinton veto by saying he had to appease his campaign donors. In 1998, Clinton was in his second term and didn't have to worry about campaigning for his election ever again.

Joel Monka said...

One reform proposal I saw seems reasonable, and I think would pass constitutional muster: have a panel of experts- you'd need several, actually, for different fields- act as a sort of grand jury for lawsuits. These would be standing committees, not experts selected by the lawyers in any one case. Their recommendation of well founded or not would not be a legal absolute- you could try to go ahead against their recommendation- but your chances of convincing anyone to hand out a huge award when a panel of experts said it was bull would be nil.

PG said...

but your chances of convincing anyone to hand out a huge award when a panel of experts said it was bull would be nil.

You evidently never saw a gifted trial attorney before a jury. Give them a nice young middle class blond couple sobbing over a dead baby*, plus one paid expert who's had some publications in the field, and the panel can go hang.

The expert panel would be useful more at the motion to dismiss or summary judgment stage, in telling the judge whether this lawsuit is indeed a loser and should be dismissed. (I think there are some states, like Louisiana, that have started providing judges with such guidance.) However, keep in mind that the standard for dismissal is that even if the plaintiff proves every fact claimed, the facts still don't support the legal claim being made. (E.g., if I claim one of my fellow limited partners was a total failure in helping our enterprise -- it doesn't matter if I prove that the guy was comatose the entire time, because by the law the limited partner has no obligations, and my beef should be with the general partner.)

* This isn't me being racist; it's the nature of where you're picking a jury.

Another consideration is how the plaintiff will come across to jurors. Someone may have a great case on paper, but Lang listens with a jury in mind. Is this person articulate enough? Would he or she seem unreasonable or strange to others? Indeed, a number of malpractice attorneys I spoke to confirmed that the nature of the plaintiff, not just of the injury, was a key factor in the awarding of damages. Vernon Glenn, a highly successful trial attorney from Charleston, South Carolina, told me, “The ideal client is someone who matches the social, political, and cultural template of where you are.” He told me about a case he had in Lexington County, South Carolina -- a socially conservative, devoutly Christian county that went seventy-two per cent for George W. Bush in the last election and produces juries unsympathetic to malpractice lawyers. But his plaintiff was a white, Christian female in her thirties with three young children who had lost her husband -- a hardworking, thirty-nine-year-old truck mechanic who loved NASCAR, had voted Republican for the past twenty years, and had built the addition to their country home himself -- to a medical error. During routine abdominal surgery, doctors caused a bowel injury that they failed to notice until, days later, he collapsed and died. The woman was articulate and attractive, but not so good-looking as to put off a jury. She wasn’t angry or vengeful, but was visibly grieving and in need of help. If the family hadn’t spoken English, if the husband had a long history of mental illness or alcoholism or cigarette smoking, if they’d been involved in previous lawsuits or had a criminal record, Glenn might not have taken the case. As it was, “she was darn close to the perfect client,” he said. The day before trial, the defendants settled for $2.4 million.

Chalicechick said...

In my previous firm, things like the racial balance of plaintiffs and defendants, who was attractive, etc were discussed frequently in liability cases before jurors, but rarely in comp cases that were held before the equivalent of judges.

I agree with PB that a panel of experts would be more or less ignored. We do live in a country where less than a decade ago a fair percent of the country wanted to replace evolution with creationism entirely in the public schools.

At the same time, I've been in a courtroom where a judge demanded a translator for a Mexican guy who seemed to speak perfect English but had an accent. That didn't exactly scream "fair trial" to me ether.

This stuff will never be totally fair, of course.

Chalicechick said...

Case in point, on the evolution thing.