Ok...despite TJ's asssertions that I'm a rat-b*stard attorney...I will let you all know that I do not practice in med-mal. I've never received a referral fee for such a case..and I've never even entertained the notion of taking on a case like this. Furthermore, I don't like lawyers. So I went to a class on Prop. 12 and the ramifications of it given by a doctor. It's his contention that this will not lower malpractice premiums to any signficant level. 1. He provided in his materials a letter from GE's Medical Protective Co. which issues malpractice insurance, to the Texas Dept of Insurance justifying the fact they were raising premiums. The letter asks for a 19% INCREASE in premiums. It addresses the caps by saying, "Noneconomic damages (the damages which were capped) are a small percentage of total losses paid. Capping non-economic damages will show loss savings of 1.0%." One freaking percent. It goes on to justify the increase by saying the tort reform acts in 1996 did not materalize any real savings. 2. He pointed out that inflation is not built in. So the non-economic cap is on a dollar figure that in x years will be outdated. 3. Something I did not know...but something you should all know. Remember when we were warned that there was a lot more in Prop 12 than was indicated....yeah, there was. EMERGENCY MEDICAL DOCTORS ARE IMMUNE TO ORDINARY MEDICAL NEGLIGENCE SUITS!!! They are only susceptible to gross negligence standards. So if you take your child to an ER, you can not expect ordinary care. You just can't. That's not the standard they're being held to. So you take your 3 year old with a stiff neck and a fever to an emergency room. They do some tests and send you home, but never do a spinal tap. Your child dies the next day of meningitis. Sorry...that's not gross negligence. So the standard of care you expect to receive has been diminished. Congratulations. We amended our state constitution for this. Of course, the ER doctor can still sue your ass for non-payment. 4. Concept that juries are smart enough to decide whether or not someone deserves the death penalty...but not smart enough to decide damages. This is really quite revolutiionary, and sets up the legislature as more of a Parliamentary type system. 5. One of the biggest contributors and lobbyists for Prop 12 was the Texas Apartment Association....know why?? Because now the private lobbyists have their foot in the door. They've now shown that legislatures CAN limit damages. So the next step is to limit damages for premises liability...then for car accidents...and on and on. This isn't about how much money the victim gets...or greedy victims. This is about holding corporations accountable in the only language they know how to speak...the bottom line. 6. His final contention was that doctors picked the wrong enemy. It wasn't lawyers...the common enemy is insurance companies, who have reduced payouts to doctors by forcing managed care, and then systematically increased premiums. So they force doctors to make less, while also forcing them to pay more for coverage. Swell.
I think he was saying that doctors are now told they can't change their prices. They charge a price...it gets beaten down by the insurance company. And then their rates go up as well. So they bring in less...and pay out more. Revenues down...expenses go up. Guess what happens to profit?
patiently waiting for someone to rebut these arguments against prop 12. This also reminds me of tort reform in regards to ounitive damages. The aim was to to limit ounitive damages becasue you always here about some outrageous number awarded to a person that burned the roof of their mouth. These figures surprised me when I read them, especially since we are always told that they are trying to stop runaway jury awards: In a DOJ study in 1996 of tort cases in the 75 largest counties in America: Punitive damages were awarded in 3% of tort cases, 24% of awards were in intentonal tort cases, 0.7% in car wreck cases. Median award was $38,000. JUDGES were more likely to award punitive damages (8%) than juries (3%), although the amounts they awarded were similar.
the only substantial argument i've ever gotten back on this is: "oh, you're just a greedy lawyer defending his own." that's it. when the insurance companies that lobbied for the thing come back and say, "eh..turns out non-economic damages are so slight, that the cap really has no effect on lowering premiums for us," that speaks volumes.
I'll give it a shot Point 1 suggests there's only a 1% effect when damages are capped. Yet points 2 to 6 imply this is a big profit grab by the insurance co's. Which is it? Since the insurance Co's operate in a competitive environment, if the only consideration was economic, the lowered costs (higher profit) alluded to in points 2 to 6 should result in lower (or not so quickly rising) premiums in the long run. Or if it has minimal effect on the bottom lines, then the 'money grab' slant of the rest of the points are dishonest. Point 3 is scary. But shouldn't consideration be given to the fact that an Emergency doctor is working in an much more unpredictable and harried environment? From Max's description this proposal goes much too far...but i'm guessing that's the logic behind it -- recognition of the differences between on-going care and assessment vs the activities in the emergency room (hey...i'm no doctor or lawyer...but i did watch ER and Law and Order). Points 5 and 6 are a bit of scare mongering and name calling. While there are vested interest pushing for this (but based on point 1, one wonders why?) there are also vested interests lobbying against it. Any idea who the trial lawyers are backing? I think you can argue quite effectively against these types of measures if your concern is about 'justice' and what's 'right' -- based on civil liberties, access to remedy, etc. I'm not as convinced by the economic dismissals. Afterall, if the insurance co's are such a cohesive bunch that they'll just pocket the savings rather than, long term, use their reduced costs in a competive manner to undercut their competion...why do they even need this measure -- they could just agree on a super profitable premium scale and screw the consumer that way. (I'm also not quite as receptive to image of the med malpractice lawyer gallantly struggling for the 'little guy' and keeping those greedy doctors in line). Best I can do...under the circumstances. But it's still doubtful I would vote for that proposition.
I personally think that Prop 12 hasn't worked like medical people thought it would. I also doubt it has hampered the legal system as most lawyers claim. I think some other system is definately needed. Regarding your points: Point 1: Everyones premiums have dropped, but I have no doubt that the insurance companies want to raise them again. This is exactly why we need a different type of system. Point 2: Thats a good point that should be addressed, however the economic damages (in most cases the meat of the lawsuit) have inflation built in. Point 3: This is perfectly acceptable in my point of view. There are not algorithms and standards of care for every patient that walks in the door. With the example you gave, it sounds like a scary amendment. However, that kind of error almost never occurs. A more likely case would be 70 year-old diabetic, hypertensive, HIV patient who complains of a cough with no fever and normal blood labs who goes home with a missed menigitis (like in your patient). Its not feasible to hold someone to a standard that never existed in the first place. Point 4: Interesting and I'm not sure about the way I feel on this point. I think people are scared of lawyers like John Edwards (regarding his CP med-mal cases) who despite absolute scientific fact that his CP cases were based on BS, still fleeced millions of dollars because of court theatrics. I don't think prop 12 is the answer to this type of problem though. Point 5: I agree. One of the many side effects of this amendment. Point 6: I think everyone is really at fault on this whole problem. I think insurance companies, lawyers and doctors should all be held accountable. The problem is that everyone is greedy. When we fix this, everything will be fixed . I don't know what the perfect system is, and I know that we will probably never have it. I do think that physicians should unionize and threaten strike (like airline pilots) when they feel that there rights are being impinged upon. I think that this would be the best defense to being screwed around by insurance companines, HMO's, medicare and lawyers too.
Something you need to know about standard of care....it's a jury charge thing. The jury is explained, in most cases, what ordinary care is. What is the ordinary care that a doctor would give in similar situations. It's proved, primarily through expert testimony and sometimes documents which account for certain procedures to be followed. Gross negligence is waaayyyy beyond that. It's a callous disregard, frankly. It's as close as you can get to mentally saying, "eh...i don't care." And that's the ONLY thing doctors treating in an ER can be held accountable for. The doctor laughed that if you went, with your emergency situation, to a doctor's office, he's still held to ordinary care...but walk in the doors of an ER, and all the rules change...and you can't expect ordinary care. Seriously, that's a joke. jcantu - i disagree entirely that it hasn't hampered the legal system...it's absolutely been a usurpation of the separation of powers by the legislature. perhaps we should turn over all jury decisions to the legislature?? this is the beginning of what could be a very slippery slope, frankly. As for economic damages being the "meat." Depends on the victim. What economic damages does an elderly person in a nursing home have when he's mistreated and dies? He has no expectation of income. So the economic damages are slight, if there are any at all. And non-economic damages for nursing homes are capped at $250K. Soooo...is $250K enough of a disincentive to nursing homes to make sure that everyone receives the care they deserve? As for your argument to point 3...the standard DID exist. It's ordinary care. It's the ordinary care that doctors would provide in the same situation. Very ordinary negligence standards that have been with us since before we crossed the Pond, frankly. Let me know when the doctors want to unite against the insurance companies. They'll need lawyers to do it. That should have been the alliance...not doctors and the insurance companies that have been screwing them.
Great information Max, I would like to hear the reactions of Doctors in Texas who were bamboozled by this propostion--are they still staunchly supporting it or do they realize that the carriers want a 19% hike in premiums even after the bold predictions to reduce costs? It's likely that they don't yet know or particularly want to reverse their conceptions as everyone KNOWS that lawyers are slimy and should be hurt in anyway possible...BUT, that is idle speculation... What ISN'T idle speculation is that insurance, in all forms, is nothing more than legalized protection rackets and we are ALL at the will of those rackets except for limited legal protections. They take are premiums, make investments, and strive for profitable returns. When they make bad investment choices or don't skim enough off the top for their investors, the buck gets passed to you and me--talk about trickle down...and I WORK in the health care/health insurance benefits management industry! Prop 12 should go the way of the Rick Perry's last term and VAPORIZE
wouldabeen -- insurance companies are MUCH more affected by the ups and downs of the stock market, in which they invest premiums, than they are payouts on non-economic damages. MUCH more. by their own numbers. using medicine as a political touchstone to limit damages elsewhere in other matters is the brilliance of prop 12 for insurance companies. it's just a stepping stone. doctors are waking up to it...they're waking up to it as they see these continued requests for increases in med mal premiums.
that was really the overarching theme that the speaker..who is a doctor..kept making. why unite with the insurance companies when they've been sticking it to you for years, was his question.
So then...are medical malpractice settlements not a problem? What's the motive here if it has little effect on costs...and that, even if it did..since presumably the size or nature of the settlements is not a concern...the insurance co's could just adjust premiums to reflect it. (I ask this genuinely...i don't know the answer. Just that the 'big-bad-insurance co's screwing you over to fatten their bottom line position doesn't seem too far off from the 'greedy-lawyer-defending-his-own cry).
i'm not following....are settlements a problem?? this isn't about settlements..this is about jury awards for non-economic damages in these cases. is that what you mean?
ok..cool...still not sure i understand the question. but i think you're asking, "why if insurance companies say it's not going to affect payouts, because it only accounts for about 1% of payouts...why then would the insurance companies lobby so hard for it?" -- is that what you're saying??? if so...there were a couple of ideas floated: 1. it's a stepping stone to other things. you've essentially removed the jury from making decisions on damages in these cases, other than those that are clearly verifiable economic damages. so...if you can do that with medmal...hey, you can do that with ANYTHING. which leads me back to the funny point that one of the largest lobbyists for prop 12 was the Texas Apartment Association, which has zero concern with medmal litigation...but lobbied like hell for this, anyway. 2. they may be understating it for the purposes of being able to continue to raise premiums...while overstating it for the purpose of reducing the payouts, even by a little bit. or some combination of the two.
Sorry to belabour this... When these types of propostions are proposed, there tends to be a lot of villian-making, name calling, spinning, etc. And whether it's the big bad insurance co's, or the ambulance chasing greedy lawyers, it's pretty easy to effectively label each side -- because, when it comes down to it, they both wear the bad guy insignia pretty well So my question is....Are Jury Awards a concern??? We hear of doctors being afraid to help patients for fear of lawsuits. We hear of sizable awards. We hear of doctors not being able to practice, or insurance being unavailable. Is this all hype? How does it compare to other countries? I'm not sure the fact that premiums may have increased recently has much relevance. We agree that investment performance has a greater effect in the short term. But surely, payouts have a significant effect in the long term. And if insurance is unavailable for certain doctors (which is what we sometimes hear) then doesn't that imply that the payouts in those industries is the concern?? -- Again...if the insurance co's are in it to make money, why not sell insurance to those 'high-risk' groups if the payouts are not a concern? Just doesn't make sense. Perhaps the competitiveness in the insurance industry is a concern. And, as I noted, there are all sorts of valid social reasons to oppose these types of measures. But the big bad insurance co just trying to fatten the bottom line at your expense line of reasoning is less effective (as least if you think through the economics and believe there is a degree of competiveness in the insurance industry) than pointing out how much money John Edwards may have made off malpractice suits.
the only relevance they have to doctors being able to continue as doctors is the premiums and their burden on doctors being able to make a living. again...i cited you to a letter from GE's medmal insurance group which asks the TDI for a 19% increase in premiums, saying that the payouts for non-economic damages are so small as to be almost worthless. soooo...the very questions you're asking are why i started the thread in the first place. this isn't dispositve...but this was the presentation by a doctor on the very questions you're asking. they also had an insurance defense lawyer speak...he acknowledged that premiums apparently aren't on the way down...certainly with no signficance.
