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.
They're as plutocratic as the democrats if not more so, and they're even more shameless about it.
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.
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?
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.
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.
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.
You're going to have to explain this more, because I do not believe I was assuming that.
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.
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...
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.
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.
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.
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.