Lame Attack on Tort Reform

There are legitimate concerns that need to be addressed in putting together tort reform legislation; and there are shortcomings, as usual, in the GWB proposals (see below).  This, however, via Kevin Drum, is grasping at straws by tort reform's opponents.  Drum cites a recent UC San Diego Study described here that shows that there are a disproportionate number of medication errors in the first few days of the month.  The study claims that this is due to pharmacists being overworked and making mistakes because they claim poor people all rush to buy their drugs after their government checks arrive.

Kevin Drum cites this study as evidence that malpractice tort reform is misguided, because, as he puts it "one of the causes of malpractice lawsuits is "” surprise! "” malpractice".

OK, its hard to know where to start.  Though I am a supporter of tort reform, I would probably not have gotten worked up enough to bother to post.  However, this is another example where science and "studies" are misunderstood and perverted in the media, which DOES tick me off enough to write.  Here goes:

  • This study has nothing to do with medical malpractice!  The debate is around doctors and doctors getting driven out of business by their malpractice rates.  What do pharmacist mistakes have anything to do with the types of medical malpractice and medical malpractice insurance rates.  The departure of doctors from certain counties has nothing to do with pharmacy errors.
  • Though the authors and Mr. Drum wish to imply that all the medication mistakes measured are by medical professionals, the study in fact includes:

"wrong drug given or taken," or "accidental overdose of drug," or "drug taken inadvertently."

Note that of the four categories of mistakes above and included in the numbers (wrong drug given, wrong drug taken, accidental overdose, and drug taken inadvertently), three of the four are reasonably the fault of the individual taking the drug, not the pharmacist.  However, since most supporters of the current tort system tend to reject the notion individual responsibility, I guess this little issue was ignored. 

  • The authors never have anything to say about Mr. Drum's point, ie they do not correlate these deaths with actual malpractice suits, so it is impossible to actually make Mr. Drum's point in the first paragraph.  The best evidence I have seen is equivocal - it says that a large number of lawsuits are baloney, but that a large number of true malpractice victims go uncompensated.
  • The authors actually have no evidence, other than their supposition, that these deaths are due to pharmacists being overworked.  They did not do any research into the specific cases involved - they just surveyed notoriously inaccurate death certificates.  In fact, though it may be in the actual report, I don't see any evidence that demand actually increases or that pharmacists are indeed overworked the first few days of the month - they just seem to hypothesize it without proof.  And, if there really is more work load the first few days of the month, they never mention any data on staffing - presumably if there is such a trend, pharmacies may actually staff up for it, which would also defeat their supposition.  My business gets more traffic on certain days of the year and we staff for it.

OK, while we are on the topic of medical tort reform, I will offer up a couple of more thoughts beyond just the silly use of this study:

  • No one denies that some malpractice torts are from real malpractice.  Wrong legs ARE cut off, etc.  No one wants to protect people who are guilty of obvious malpractice.
  • The issue is less with the existence of medical torts but with their enormous escalation in the last 10-20 years.  To argue that malpractice torts mostly result from real malpractice, you have to argue that the incidence of real malpractice has gone up dramatically over the last 20 years.  That may be, given the great increase in complexity of medicine, but I doubt it is the entire explanation

As usual, part of the problem in this argument is that GWB and his minions suck at getting a message out that can drive a consensus.  Here is my alternate message on medical malpractice:

The system today is broken for two reasons: 

  • First, bad doctors and real malpractice is not punished strongly enough, and some of the worst practitioners go on to hurt more and more people.   Insurance today spreads the cost of bad medicine to all doctors, reducing the negative impact on the worst.  In addition, insurance premiums and torts are a poor substitute for better discipline and penalty systems for bad medicine
  • Second, too many good doctors are punished with suits because they had bad outcomes from good medicine.  Sometimes babies are born with birth defects, sometimes medications that help millions have unpredictably bad side effects for a few unlucky people, and sometimes people die and there is nothing that can be done.

More important than damage caps, both for truly injured patients and good doctors, is to bring scientific sanity to the system, and to make sure that bad medicine, not bad outcomes, are punished.

By the way, in a previous post Mr. Drum said that there is no cost to "frivolous" suits since they don't go to court.  This is quite wrong:

  • I am not in medicine, but I am in a public contact business that gets some slip and fall suits, but I assure you that your insurance premiums can go up substantially even for suits that don't go to trial
  • You still have to have a lawyer at $400 or so an hour to defend against a frivolous suit.  You can't walk in the first day and say, "hey judge, this is BS, let's drop it".  I have spent tens of thousands of dollars before frivolous suits against me get dropped
  • Frivolous suits do go to trial and can win.  Just think McDonald's coffee.

And yes, I have had experience with frivolous suits.  In one case, a person who claims to have stepped on a nail head protruding from a board in our campground sued us for sexual dysfunction.  That case is still active more than 3 years later!  In another case, a person claimed to have hurt her knee falling on some steps.  Excluding the issue of why I am at fault if she fell down a perfectly safe set of steps, we eventually discovered that she had hurt her knee several weeks earlier, had no medical insurance, and was visiting a number of local businesses making the same claim to try to get someone to pay for an operation.

So please, don't lecture me on frivolous suits.  When Mr. Drum has to pay $400 an hour to defend a suit from someone who got an infected paper cut while reading his article in a magazine, then he can talk about why frivolous suits are OK.  However, he is right in this respect - I don't think the answer is capping damages.  The answer is having a way to defeat these things, to drop them out of the system quickly and inexpensively.  To have some kind of sanity filter.  This would help those of us subject to BS suits, and would help the truly injured get to trial faster.

  • markm

    I think one sanity filter would be a "loser pays" system. As it is now, a plaintiff with a contingent-fee arrangement risks absolutely nothing. His lawyer risks a small filing fee and his time - which is only a loss if there were better cases he could have been working on. It's a good gamble for him - a small investment versus an appreciable chance of a huge payoff. The defendant pays for a lot of hours at $400 per hour, whether he wins or loses, so there's a lot of pressure to settle and end the outflow even when he would win at trial. And these settlements make the odds better for the plaintiff's lawyers. OTOH, if the case is well-founded, the plaintiff typically gets far less than the actual damages, since his lawyer rakes off 1/3.

    So, make the plaintiff who loses or withdraws a suit pay the defendant's reasonable legal fees. If there's a contingent-fee arrangement, the lawyer is responsible instead. Make the defendant who refuses settlements and loses at trial pay the plaintiff's reasonable legal fees. (This should be the default, but the jury should have the power to reduce or eliminate fee awards.) This should not have much effect on cases where the fault is clear, except to encourage the guilty to settle, but it gives tort lawyers a big incentive to avoid dubious cases.

    And finally, medical malpractice cases often start with a shotgun approach - they file against everyone who was even remotely connected to the case. A dozen or more doctors and nurses that weren't even in the room when the alleged malpractice occurred have to hire lawyers to get themselves dropped from the suit. Each case isn't very expensive, but they add up, and the emotional toll that receiving such summonses takes may be worse than the financial. I'd discourage this by requiring not only that the plaintiff (or his lawyer) pay the actual legal fees, but by awarding a statutory minimum of $5,000 for each defendant that is ultimately dropped from the suit or found to be not responsible.

    Finally, specialized courts should be created to handle individual medical malpractice and auto accidents expeditiously and at less expense. The med-mal court would use a panel of judges or professional jurors that understand medical terminology and standards of practice. This saves all the time and effort of trying to teach judge and jury all this during a trial, but more importantly it reduces the unpredictability of verdicts.

  • Elizabeth

    Pretty random post...but I am writing a report on medical malpractie and would love to use one of your two examples of frivolous lawsuits. Could you email me more information on them?? Thanks