Comment by fsckin | Hacker News Reader

Comment by fsckin | Hacker News Reader

The $250,000 limit on medical malpractice suits in Texas is bullshit. Protecting doctors from frivolous lawsuits is fantastic in theory, but if make a grave mistake, you should be held accountable. 'License to Kill' isn't that far from the truth. It's expensive, but you can literately kill people and get away with it.

Here's my story:

We saw two doctors in Texas, both were convinced that my wife had advanced bowel cancer. The second doctor confirming the diagnosis was the Worst Day in my life.

We had no idea the doctors had colluded behind our backs, negating the exercise of getting a 'second unbiased opinion'. We had gone to a separate chain of hospitals and got the first diagnosis regurgitated to us.

She went in for a laparoscopic bowel resection surgery and woke up with:

* A nasty scar from pelvis to belly button

* Temporary ileostomy bag (her worst nightmare, requiring another surgery to remove, more nasty scarring)

* Hysterectomy (Sterilized, no kids yet)

* News that the previous diagnosis of cancer was incorrect.

* New diagnosis: Endometriosis (Can be treated without surgery in most cases)

The doctor was practically in tears when he broke the news to me.

The doctor was paid $60,000. The anesthesiologist and hospital split the rest, and our insurance paid in excess of $150,000 for the first surgery that wasn't medically necessary. The ileostomy reversal was performed in another state and cost another $40,000. Insurance is still paying for emergency room visits a few times a year.

We eventually consulted with several lawyers, and none would take the case, even the scummiest bastard I've ever met who would probably take candy from a baby if given a chance to do so. They all came to the same conclusion:

"There is no question that you have been severely and permanently wronged. Due to complications, you will need regular emergency medical attention for the rest of your life. If we took this case to court, we would win it every time. Unfortunately, it is not worth it to us due to the $250,000 limit. There is zero chance they will settle, there is no incentive for them to do so. A trial will be long, drawn out, and eventually, you could owe us more than the jury awards."

Thanks, Republicans.

Tort Reform (essentially limited liability) is in direct conflict with the only corrective mechanism in the 'free market'. I've never understood why republicans support it so earnestly.

Because republicans only care about free market for the votes and the ability to destroy governmental processes and rollback social progress it gives them.

They're as plutocratic as the democrats if not more so, and they're even more shameless about it.

And because someone paid them to care about tort reform.

If you look at the evidence, especially the Gini coefficient, Republicans are a lot more plutocratic than Democrats: http://www.zompist.com/liberalism.html

You know, it's sad to see a well-thought out and researched document that makes many excellent points be totally ruined by a never-ending series of rants and name-calling against the opposition that also predictably ignores a few inconvenient facts.

I was dissecting the problems but it was turning into a wall of text. I'll sum it up easily enough in a smaller wall of text:

Since the 1930s:

- All bad things that have happened are because of the evil Republicans going out of their way to screw the little guy. After all, Republicans never do good and only make mistakes.

- All good things that have happened are because of the courageous and saintly Democrats cleaning up the messes of the Republicans. After all, Democrats always do good and never make mistakes.

- If a Republican President spends an incredible amount of money to win a war, it was bad. If a Democrat President spends an incredible amount of money to win a war, it was good. Never mind the fact that Congress spends the money, not the President who only presents a wish-list.

- If something bad happens: Republican is President means mention it, Democrat is President means ignore it. Republicans control Congress means mention it, Democrats control Congress means ignore it. If something good happens: swap first set of rules.

- If something bad happens: Republican President and Democrat Congress, blame President. Democrat President and Republican Congress, blame Congress. Republican President and Republican Congress, blame Republicans. Democrat President and Democrat Congress, blame Republicans. If something good happens: swap first set of rules.

For the problems we see in today's world created by government, I blame the Republicans and Democrats involved. For the good things created by government, I credit the Republicans and Democrats involved. Only a fool goes with the us-vs-them mentality.

The only way a person could possibly think that Republicans truly believe in the "free market" is if you only ever pay attention to what they say and never to what they do.

Because "free market capitalism" is mostly using "free market" (in this context, the concept of minimally regulated markets with correction for actual unlicensed harm through legal action based on specific harms) more as a rhetorical device for selling "capitalism" (the organization of the economic system to favor holders of capital) than as a real end in itself.

Perhaps because tort cases can wind up looking remarkably similar a lynch mob?

You mean a lynch mob that patiently waits for weeks or months while the defense lays out its side of the story? A lynch mob that abides by whatever decision a judge or jury eventually reaches, after weeks or months of testimony? That kind of lynch mob?

I mean the kind of lynch mob that extracts comically absurd recompense for errors. I'm a little busy to go digging for examples right now, but suffice to say that when a doctor has made a small mistake he does not deserve to be subsequently ruined.

Patients don't deserve to be ruined, either. Risk from unfair lawsuits and misfires of civil law are something we all have to accept.

Patients don't deserve to be ruined, either.

Agreed

Risk from unfair lawsuits and misfires of civil law are something we all have to accept.

Not agreed. First of all, you give no reason why "it just has to be this way". Is there no compromise, no middle-ground? Second of all, it's awfully easy for the patient to decide the doctor should bear all the risk, eh?

> Is there no compromise, no middle-ground?

A civil lawsuit system with proof requirements for damages but full exposure to at least all actual damages is the middle ground (or at least one of them.)

Patient bears all or disproportionate risk (as is the case with damage caps or not having a liability system at all) is an extreme, as would be doctor bears disproportionate risk (which would be the case with something less than the usual civil standard of proof, or a presumption of guilt that had to be rebutted). You can't really get "doctor bears all risk", because no matter how easy it is to punish the doctor, or how extreme the punishments are, the patient is still going to bear the risk of non-compensable injury or death from medical malpractice.

> Second of all, it's awfully easy for the patient to decide the doctor should bear all the risk, eh?

That's not even a possible option (much less a fair description of anything on the table), so while it might be easy for someone to decide it in the abstract, its not really relevant to the issue at hand.

> A civil lawsuit system with proof requirements for damages but full exposure to at least all actual damages is the middle ground

It's trickier than that. Will the prosecution pay the defense's attorney fees if the doctor wins? Because otherwise you incentivize frivolous suits meant to force the defense to settle because winning is more expensive than settling.

> Will the prosecution pay the defense's attorney fees if the doctor wins?

Sometimes, but winning isn't enough.

> Because otherwise you incentivize frivolous suits meant to force the defense to settle because winning is more expensive than settling.

This assumes that "unsuccessful" is equivalent to "frivolous". The fact that this is not true (whether it comes to either initiating a suit or defending it) is why those who lose, on either side, don't automatically pay the other sides attorney's fees, while it is possible for them to be awarded such fees.

Note that a strict loser-pays system disincentivizes meritorious suits that are difficult to prove, or any cases near the boundaries of whatever the formal rules are, since there it drives up the expected cost of such suits.

And, if its not an obviously-biased-to-favor-the-defense system that only has strict loser-pays for the plaintiff, it also disincentives certain meritorious defenses in favor of settling, for the same reason that it disincentives certain meritorious are tough-to-categorize suits.

Again, the system we have is already the middle ground (or, at least, one of the available middle grounds) between undesirable extremes.

> This assumes that "unsuccessful" is equivalent to "frivolous".

You're going to have to explain this more, because I do not believe I was assuming that.

"Implies" might be better than "assumes"; what is actually incentivized (or, perhaps more accurately, not disincentivized) by the absence of a strict loser-pays system isn't "frivolous" lawsuits, per se, but lawsuits which it is less than certain will succeed, of which actually "frivolous" lawsuits are a small subset.

There's a wildcard element in any court case that involves a jury. But that's a cost of having an impartial jury of your peers, which is a core American value. I'm pretty sure that a lot more harm comes from worrying about being sued than actually being sued. A few years ago a small business owner was worrying himself sick because he was being sued, certain that he would lose his business. He still has his business.

First of all, you give no reason why "it just has to be this way"

dragonwriter said it better than me. I know just enough about law to know that it's a carefully studied problem and there are several established doctrines used in tort law. A lot of people seem to think law is made by idiots.

A doctor that makes a small mistake doesn't deserve to be ruined, but should have to deal with increased malpractice insurance premiums. A doctor that makes an egregious mistake may well deserve to be ruined, as does one that deliberately engages in malpractice (in this case, collusion about the diagnosis, which undercuts the entire scientific foundation of medicine).

The problem is that so-called tort-referom laws protect the bad and truly incompetent actors just as much as they protect the good-but-unlucky ones. In the case we're discussing here, all the economic risk has been transferred to the patient.

$250,000 is peanuts in medical expense terms, about the starting annual salary of a specialist and certainly much less than the annual salary of most surgeons or oncologists. So the doctor has perhaps 6 months salary at stake (leaving aside malpractice insurance for simplicity), whereas the patient may be facing an economic burden running into the tens of millions. A burden which you and I as taxpayers will eventually be sharing, when by rights it should have fallen on the malpractitioners, their employers, and their insurers.

For those who say that the insurance costs will just get passed on to the public in the form of higher medical costs, this is not actually the case due to price elasticity. In meantime, I can only advise avoiding malpractice states in general and Texas in particular. Txas likes to boast that licensing of new doctors has gone up by 25% since the law was enacted in 2003, but Texas is still ranked 46th nationally in terms of doctor:patient ratio, with only 176 doctors per 100k people instead of the national mean of 219. [1] so it's harder to see a doctor, they can charge more, and you have no comeback if they fuck up.

1. http://abclocal.go.com/ktrk/story?section=news/state&id=9226...

I'm not specifically supporting Texas's implementation of tort reform.

The /doctor/ is ruined? The insurance company would have to pay. Would a doctor become uninsurable because of insurance company lawyer ineptitude (if indeed they are forced into an expensive settlement for a small mistake)?

Have there been huge settlements? Sure. But those settlements are usually punitive and serve as a deterrent to bad behavior for hospitals that can make hundreds of millions in profit a year. A $500K slap on the wrist would carry the same weight as a $150 traffic ticket to a member of the middle class...annoying but forgettable. Now $10m? $20m? Suddenly everyone from the Chairman on down takes an interest in preventing whatever went wrong.

Do you think the insurance company would blame the lawyer or the doctor in that case? I may not think straight but I'm willing to bet they would blame the doctor and increase the premiums. If a doctor's premiums become large enough then he is in effect uninsurable. If that doctor still has educational debt to pay? Ruined.

Except those costs that hospitals incur are often passed down to other people to pay. Hospitals are not always the money-printing machine you seem to think they are. Well, some are I suppose. Of course, those increased fees by the hospital is often covered by medical insurance, which now has to increase premiums across the board to cover the increases.

>Of course, those increased fees by the hospital is often covered by medical insurance,

Insurance carriers have a lot of pull to decide how much they are willing to pay. They don't just blindly accept whatever numbers a hospital gives them. Those settlements come straight from the bottom line and are not simple to recoup.

> Perhaps because tort cases can wind up looking remarkably similar a lynch mob?

There's occasional highly-publicized cases (usually, one every few years or so, across all of tort law not just medical malpractice) where what superficially appears to the general public to be disproportionate awards are involved, that usually meet one or both of the following descriptions:

1) The actual facts on which the award is based are substantially different than the popular story that is circulated to use it to point to the disproportionality of the system, and/or

2) The award never has to be paid because it is suspended pending appeal and revised or reversed on appeal.

That's about as close as it gets.

I think it's a pretty simple equation of doctors being in the party and tort reform appealing to the Reaganite anti-regulation, anti-government message. They probably aren't all that serious about it, though, because they trot it out at election time and then it goes away, at least at the federal level.

>Protecting doctors from frivolous lawsuits is fantastic in theory,

In principle, we want everyone to be protected from frivolous lawsuits. The $250k limit for all practical purposes protects doctors from nearly everyone's lawsuit, frivolous or not. The absence of normal market forces in medical practice makes it even more important to have competent and strong oversight. We get none of that in Texas. Hey, at least malpractice insurance is cheap! (I wonder if it really is.)

OTOH, there are now very few reasons not to travel to another country for major health care, like surgery. Something bad may still happen, but you aren't likely to pay as much for it, and you might even be treated more fairly if it does.

Good grief, that's awful. I am so sorry.

There are two kinds of damages in a lawsuit, punitive and compensatory. Compensatory damages compensate for the actual wrong that was done and any corrective action needed (i.e. additional surgeries, physical therapy, lost wages, etc). Punitive damages are put in place as a punishment and to hopefully ensure that doctors/engineers/professionals are take more precaution when conducting their business.

It is my understanding that the 250K cap is on punitive damages only (at least in most states). I'm sorry that your wife was wronged and 250K does sound low to me, but the cap is there in general to prevent a runaway jury from awarding outlandish sums ($10-100 million) to punish a single person, because ultimately society in general pays that $10-100 million in the form of more expensive goods and services.

I think society pays a higher cost by keeping these bozos around.

Why? Because they made one mistake that affected this one couple? I can't imagine the pain they have but it sadly doesn't affect society much in of itself.

Cases of extremely high damages affects other doctors who didn't make such mistakes, which in turn affects their own patients. Runaway punitive damages affect society more than you may think, but you have to consider areas outside the medical field as well.

Tort reform is necessary in lots of ways but I would agree the $250,000 cap is a problem. If the cap is on punitive damages only then I would imagine a lawsuit would have taken the future medical expenses into account when deciding the payout. But since there's no potential huge punitive damages payout then apparently no lawyer is interested in taking on the case.

Seems to me that a great deal of the system falling apart failed this couple, not just some BS tort reform law.

Cases of extremely high damages prevent doctors like this from making the same mistake twice (by putting them out of business).

Do you really think it is good for society if doctors can screw up with no penalty.

If a pilot made mistakes this stupid they would be unemployed or dead.

Other cost: More strain on her community's local medical resources Less kids growing up in what could be a positive household

I see a great deal of people to blame for your pain than just one group of politicians.

Was there nothing to be done about the two doctors colluding behind your back? Because that doesn't sound like medical malpractice to me, that sounds like fraud.

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