You may not hear docs talking about caps, but literally every proposal that makes it to the legislature contains caps. Actions speak louder than words.

“there’s a lot of money in the status quo.”

There’s probably not as much as you’d think, certainly not compared to the risk involved. Med mal is a specialty, and practiced by very few attorneys because of the cost and the complexity of the issues. The good ones are very good, but could probably make a lot of money trying any kind of case.

I wasn’t “blaming” anyone for the 3 strikes. But again, what did you expect? You convince people the good doctors deserve protection, pretty soon they realize they can’t all be good and can’t think of any better way to tell the difference than malpractice payments. Can you tell a good plumber from a bad one just by talking to them?

I wasn’t referring to the number of suits filed, I was referring to payouts. Your claims of activism though are not supported. Of the 24 doctors who have paid 10 or more claims, only 12 have been disciplined. And that wasn’t me talking about the reliance on anecdotal evidence.

Did it ever occur to you that litigious people don’t necessarily want to be litigious? That sometimes insurers flat deny meritorious claims that should be paid leaving people with no recourse? Or lowball offers knowing the claimant probably can’t afford to hold out? By the way, one can lose a case and it doesn’t mean it lacks merit.

As for what tort reform I would propose, it would be to strengthen Rule 11 sanctions which would allow judges to be harsher on those bringing meritless claims. One thing to note though, in medical malpractice, because of the short statute of limitations, it’s often necessary to file suit against all physicians involved to sort out who was responsible for what. If physicians would give depositions pre-suit, this would probably not be necessary, but I don’t see this happening soon.

You can’t really stop people from FILING claims, though. Because you can’t judge something meritorious or not until you see the evidence.

You shouldn’t come down that hard on us, for you’re only a drunk driver, or even someone trying to get through a red light, away from needing us. Do you think insurance defense lawyers represent personal injury plaintiffs? How about those big national and international firms with rosters of Fortune 500 companies as clients?

I don’t hear too many docs arguing that caps alone are the be-all-end-all for patients, rather they argue that a whole tort reform package is good for patients. If it increases physician supply (which gives patients more choice), and encourages physicians to take on typically higher-liability (yet necessary) cases like ER call, then everyone benefits. We may dicker about the incarnation/definition of “reform,” but I certainly don’t expect attorneys to be thrilled with the idea… there’s a lot of money in the status quo.

I also question the blaming of the 3-strikes law on the physicians for daring to ask for caps. That “blaming the victim” is something I’d expect from a criminal defense attorney, not a PI attorney. The trial lawyers pushed for the 3-strikes law after the FMA proposed giving a bigger percentage of any malpractice settlement to the victims… it was pure political payback.

Our medical board in Florida is actually fairly activist, at least from the physician perspective. They rake people over the coals with gusto, and generate a lot of money in fines. Even so, I suppose you could view them as ineffective if you define “discipline” as simply revoking licenses. How would the PI bar feel if we automatically disbarred attorneys who consistently lost cases, or brought 3 meritless cases?

Also, multiple suits are not themselves evidence of a dangerous physician. High-risk specialties encounter more suits simply by the nature of their practice. Neurosurgeons, for instance, practice a high-stakes, high-risk specialty, and encounter far more bad outcomes than other specialties… you’d expect more suits than a Dermatologist. Slagging on docs for their purported reliance on anecdote, while simultaneously claiming that a lawsuit or two (hardly a large dataset) represents a pattern of incompetence worthy of stripping licenses is a little incongruous.

I realize I’m coming down pretty hard on you PI guys, but you don’t operate in a vacuum. If there weren’t litigious people, you guys would be out of a job.

But let me turn this question around: Some of you seem to agree that frivolous cases and “greedheads” are a problem… how would you propose we winnow out the meritless cases? What sort of tort reform would you support?

Which is why I don’t. Pardon me if I snicker when physicians argue caps are necessary for the patients, as well. There’s plenty of hypocrisy on both sides. Let’s both agree that both sides have a financial stake in the outcome.

But let’s be clear on one other thing. There is not a “malpractice crisis”. In most states the number of claims and payouts remain flat or track with medical inflation. What we have is an insurance crisis. Malpractice carriers lost money, for a variety of reasons, and they raised their rates on doctors until doctors squawked. It’s happened twice before in economic downturns.

For an excellent summary of this issue, try this article from Medical Economics:

http://www.memag.com/memag/article/articleDetail.jsp?id=141338

For a good summary of how insurance works, read Warren Buffett’s February ’04 letter to Berkshire shareholders, available at Berkshire’s website. It’s very readable and brief, and will explain the economics behind insurance. Berkshire just bought Medical Protective, the nation’s largest malpractice insurer, from GE by the way.

By the way, why do you have insurance if not to defend you and pay claims? Do you just pay it because it gives you a warm fuzzy feeling? Why is it so bad when you have to use it?

As for Florida’s 3 strikes and you’re out law, what did you think would happen when you cap damages? Considering your medical board rarely disciplines physicians despite multiple malpractice claims paid, the public ought to get something for giving up it’s right to recover. You routinely talk about the “climate” but that climate of fear physicians feel is not based in facts.

There is a problem, but your cure doesn’t address the cause. Here’s a couple of quotes from Florida insurers during the last “crisis” which are illuminating. These are typically what you see AFTER “reform” is enacted, and they come back for a rate increase:

Aetna Casualty and Surety Co. (Florida):
After Florida enacted what Aetna Casualty and Surety Co. characterized as “full-fledged tort reform,” including a $450,000 cap on non-economic damages, Aetna did a study of cases it had
recently closed and concluded that Florida’s tort reforms would not effect Aetna’s rates. Aetna explained that “the review of the actual data submitted on these cases indicated no reduction of
cost.” (Aetna Casualty & Sur. Co., Commercial Ins. Div., Bodily Injury Claim Cost Impact of Florida Tort Law Change, at 2 (Aug. 8, 1986))

St. Paul (Florida):
St. Paul’s found “a total effect of about 1% savings” from Florida’s 1986 tort reforms, but that even this 1% might be inflated. St. Paul concluded that “the noneconomic cap of $450,000, joint and several liability on the noneconomic damages, and mandatory structured settlements on losses above $250,000 will produce little or no savings to the tort system as it pertains to medical malpractice.” (St. Paul Fire & Marine Ins. Co., Medical Professional Liability, State of Florida–Addendum at 1 (1986))

You’ll pardon us docs if we snicker when plaintiff’s attorneys argue the purity of their motives (“we’re just helping the victims get just compensation… for a fee”). When trial lawyers (who have a clear financial stake in their position) claim that there’s no malpractice crisis, that the greedy/negligent doctors just want a license to kill, and greedy insurance companies just want to make outrageous sums of money, while attorneys are the beneficient ones looking out for the “little guy,” you’ll excuse us if we guffaw a bit. Really… I’m serious… that’s how sanctimonious some of you come across.

I practice in Florida, where the PI attorneys are killing us. Physicians have left the state, our group is having a hell of a time recruiting, and a lot of it is the med-mal situation here. I can’t remember the last suit against one of my colleagues that had real, actual merit, yet we spend blood/sweat/tears defending every single one, since we have a brand-new 3-suits-and-you-lose-your-medical-license law in this state now.

Don’t tell me there’s no problem, when what you really mean is that there’s no problem for YOU. Do you really think us docs are bitching just to hear ourselves talk?

I’m not delicate. Some people don’t like dissent, I understand.

Besides, would you really want me OVER-employed, if all you believe about lawyers is true?

You take a backhanded parting shot about what stocks GruntDoc purportedly owns, while simultaneously playing the wounded gentlemen when the attorneys’ financial conflict of interest is highlighted?

What would you call that?