Why not Universal Healthcare?

[E-Stat]

I know who brought it up but...

You continue to ignore the context of smoking and obesity.

rw

[dean_martin]

You continue to ignore the context of smoking and obesity.

rw

Sorry, your comments seemed broader than that upon first read.

I've been subjected to the moral majority's pandering and admonissions in the name of Christianity (as one of its loud-mouths gets busted for sleazy sex or drug use) for years here in the deep south. I'm warped.

[Auricauricle]

Okay, what is this? A discussion on the issues surrounding Universal Healthcare or on Christian Ethics? God, lemme get a beer!

[thekid]

Regarding the discussion about how lifestyle affects health care;

They have a saying in the insurance industry. There are no bad risks only bad premiums.

People who are smokers overweight etc should be charged the appropriate premium for the anticipated greater pay-out. I would argue that because more people will be covered now by some sort of private/public policy their is slightly more of a chance that people will be charged a premium in line with their risk. I say slightly since even under the proposed plan we still tend to favor employer based health care and these plans tend not to underwrite people as strictly for health risks such as smoking and obesity. People whose life-style habits affect their health tend to be older when their lifestyle choices begin to take their toll. At that point a high percentage of them get their coverage through Medicare/Medicaid which is when the taxpayers really pay for people life choices. I do not see how the proposed health care reform addresses that situation.

[dean_martin]

Bondsam, your dead wrong about defensive medicine. I'm saying this as an insider as a physician. We could save a few hundred million if we did not practice defensive medicine. I would venture to say that 50-75% of tests that are ordered in ER's and to a lesser extent in clinics are CYA tests due to fear of malpractice. Hell, even referrals to the ER by nurse care lines and Dr's clinics are CYA because they can't diagnose over the phone. We see about 5-10 patients a day sent in to us that do not need to be there.

If you don't think Dr's are scared about being sued, just look at states like Florida which has a shortage of OB-GYN Dr's because they are sue happy there and Malpractice insurance is over $100,000. They along with Nevada and Arizona also have trouble with emergency Neurosurgical Care because these Dr's have pulled out of those states due to high malpractice rates.

As far as lab goes, most lab is done by a hospital lab and hospital labs are owned by the hospital and usually run by the pathology group. Many hospitals do outpatient lab for physicans clinics. And a lot of lab is sent out to Specialty Hospitals like Mayo of John Hopkins where they do speacialty testing for certain diseases because the equipment is too technical and expensive for every day hospitals.

I won't dispute the fact that some Dr's may own shares of out of hospital private labs but it is generally illegal and there must be full disclosure. I have been in practice since 1986 and my brother has been in practice since 1980 and we have never run across your scenario. It is a drop in the bucket compared to the other factors that drive up the cost of medicine.

The majority of costs come from END OF LIFE CARE OR CARE IN THE LAST 6 MONTHS OF LIFE, new technology costs, product liability, drug costs and hospitals and Dr's clinics trying to recoup the losses of people not paying a dime for their care or receiving only 10 cents on the dollar reimbursement from state and federal health care.
Hospitals have 100's if not thousands of employees that need to pe paid. Dr's offices overhead typically run 50%. People forget that, but they sure don't forget to complain when they have to wait an hour in the clinic to see their overworked and underpaid family Dr.. Or complain when they have to wait 2 hours in the ER for a non emergent complaint. I guess we should hire double the employees and DR's and just double the cost!

But go a head and blame the DR's for everything. It's easy to make us the scape goats. Every one know's we only went into medicine to do 4yrs of college, 4 years of medical school 3-8yrs of residency training at minimum wage and come out $200,000 to 400,000 in debt with high interest loans at age 30-35 and then have to pay thousands of dollars of malpractice insurance and work 60hour work weeks. It just could not be that we want to do something as noble as taking care of the sick and injured. But honor and nobility has gone the way of the dinosaur in this country as evidenced by the high number of malpractice suits especially nuisance suits which are usually settled out of court.

I appreciate what you do, what you've gone through to get where you are today and your informative input, but I have to respectfully disagree regarding the "high number of malpractice suits especially nuisance suits which are usually settled out of court". It makes no economic sense to file a lawsuit if you are not prepared to take the case to trial and continue on appeal. "Nuisance suits" = potential monetary sanctions against the lawyer and suspension of license. The typical medical malpractice lawsuit costs $150,000.00 to pursue due to the cost of hiring one or more experts at least one of which has to be a doctor practicing or who has recently practiced in the same specialty or area of medicine as the defendant doctor. Therefore, a patient who has been wrongfully harmed (as defined by the state's medmal laws), but whose damages are minimal may never be compensated. This usually includes children and the elderly who cannot claim damages for lost wages. Only 2 to 3% of incidents of medical errors result in a lawsuit.

We should be able to say there is a direct and definitive relationship between medical malpractice insurance premiums and number/amount of lawsuit payouts but I've yet to find that direct relationship. We've had medmal insurers in our state (there are only two now and there's no reason for this lack of competition) who have successfully lobbied for legal reforms based on exaggerated threats of doctors leaving and then turned around and said we're not lowering premiums. The medmal insurance problems are not based soley on medmal lawsuits. Something else is at play here and it may have to do with insurance companies being regulated state-by-state. I don't know the answer, but like you, I don't want my profession (lawyer) to be scapegoated in the health care debate. I do know we don't help our self-image with those tasteless tv ads and the propensities of some of our ranks to be *******s when dealing with non-lawyers. Our state bar put a civility program into effect not long ago and it seems to be working with reminders now and then. Our state bar also regulates advertising, but it can only do so much because "commercial speech" is protected by the First Amendment.

Here's an opinion piece from the NY Times that reviews most of the data regarding medical malpractice liability. I don't agree with all the author's conclusions, but at least he attempts to stick to data that isn't tainted (and there are a lot of "psuedo studies" out there).

http://www.nytimes.com/2009/09/23/bu...tion%22&st=nyt

[blackraven]

I'm not necessarily target big tobacco, but you could make one life style change in society that would have the greatest impact on our health, it would be to not smoke. I agree, obesity is a huge problem (no pun intended). Not only is it our poor diet but also lack of exercise. TV, video games and computers have helped play a big role. When I was growing up all we did was play sports and a few board games. We were much more active than people and kids today.

[blackraven]

I appreciate what you do, what you've gone through to get where you are today and your informative input, but I have to respectfully disagree regarding the "high number of malpractice suits especially nuisance suits which are usually settled out of court". It makes no economic sense to file a lawsuit if you are not prepared to take the case to trial and continue on appeal. "Nuisance suits" = potential monetary sanctions against the lawyer and suspension of license. The typical medical malpractice lawsuit costs $150,000.00 to pursue due to the cost of hiring one or more experts at least one of which has to be a doctor practicing or who has recently practiced in the same specialty or area of medicine as the defendant doctor. Therefore, a patient who has been wrongfully harmed (as defined by the state's medmal laws), but whose damages are minimal may never be compensated. This usually includes children and the elderly who cannot claim damages for lost wages. Only 2 to 3% of incidents of medical errors result in a lawsuit.

We should be able to say there is a direct and definitive relationship between medical malpractice insurance premiums and number/amount of lawsuit payouts but I've yet to find that direct relationship. We've had medmal insurers in our state (there are only two now and there's no reason for this lack of competition) who have successfully lobbied for legal reforms based on exaggerated threats of doctors leaving and then turned around and said we're not lowering premiums. The medmal insurance problems are not based soley on medmal lawsuits. Something else is at play here and it may have to do with insurance companies being regulated state-by-state. I don't know the answer, but like you, I don't want my profession (lawyer) to be scapegoated in the health care debate. I do know we don't help our self-image with those tasteless tv ads and the propensities of some of our ranks to be *******s when dealing with non-lawyers. Our state bar put a civility program into effect not long ago and it seems to be working with reminders now and then. Our state bar also regulates advertising, but it can only do so much because "commercial speech" is protected by the First Amendment.

Here's an opinion piece from the NY Times that reviews most of the data regarding medical malpractice liability. I don't agree with all the author's conclusions, but at least he attempts to stick to data that isn't tainted (and there are a lot of "psuedo studies" out there).

http://www.nytimes.com/2009/09/23/bu...tion%22&st=nyt

Dean, there are many cases of of nuisance suits that are settled out of court because the lawyers of the malpractice insurance companies find it cheaper to settle than to take the case to court.

My concern with malpractice is that almost all Dr's fear being sued and therefore we practice defensive medicine which costs millions of dollars each year. There needs to be some reform protecting Dr's who are practicing standard of care. Malpractice legislation is a tough issue because the lawmakers are usually lawyers. I have no problem with punishing Dr's who are grossly negligent, but to be able to sue for a bad outcome that was out of the Dr's control is BS! Medicine is an art and is not perfect as much as we try to make it be. Do you know how many times per year we hear patients say they are going to sue! Its more than you think. Most are threatening us to try and get what they want and it goes no where, but it has you looking over your shoulder and wondering why am I even doing this job.

Now if I really want to start a debate, lets talk about lawyers fee's! $250-over $400 per hour and charging for every stamp, paper clip, phone call, copies of documents.

Sorry, I couldn't resist. About 15years ago we had an ex partner sue our group. He lost! But lawyer fee's were $400 per hour. Thats robbery!

[dean_martin]

Dean, there are many cases of of nuisance suits that are settled out of court because the lawyers of the malpractice insurance companies find it cheaper to settle than to take the case to court.

My concern with malpractice is that almost all Dr's fear being sued and therefore we practice defensive medicine which costs millions of dollars each year. There needs to be some reform protecting Dr's who are practicing standard of care. Malpractice legislation is a tough issue because the lawmakers are usually lawyers. I have no problem with punishing Dr's who are grossly negligent, but to be able to sue for a bad outcome that was out of the Dr's control is BS! Medicine is an art and is not perfect as much as we try to make it be. Do you know how many times per year we hear patients say they are going to sue! Its more than you think. Most are threatening us to try and get what they want and it goes no where, but it has you looking over your shoulder and wondering why am I even doing this job.

Now if I really want to start a debate, lets talk about lawyers fee's! $250-over $400 per hour and charging for every stamp, paper clip, phone call, copies of documents.

Sorry, I couldn't resist. About 15years ago we had an ex partner sue our group. He lost! But lawyer fee's were $400 per hour. Thats robbery!

I'm not sure how you're using the phrase "nuisance suits". Are you saying they have no merit or that it makes better economic sense to settle? We're often offered settlement amounts based on the cost of defense which the defense lawyer characterizes as nuisance value. Many times these offers are nothing more than posturing. They're trying to send a message that the case isn't worth anything so we better take what we can get while we can get it. Again, it's posturing and an attempt to intimidate.

We have many consultations regarding bad outcomes. Of course we (father and sons law firm) know that a bad outcome rarely means there was a breach of the standard of care. Most of the time if there was an apology along the lines of sympathy from the doctor (I'm not talking about an admission of fault when there is none) or a better bedside manner, the patient would not have come to see us. That's no reason to sue, of course, but they feel better after we talk them through it. We refer almost all potential medmal cases to larger firms. But we reject most ourselves and of those we refer for further evaluation maybe one out of three per year are strong enough to file suit. Needless to say, medmal is not our bread butter, but we do hear a lot of complaints.

As far as lawyer's fees go, we do not charge by the hour. Our clients can't pay by the hour. We take cases on a contingency fee. Some special interest groups know that most regular folk can't hire a lawyer on an hourly fee basis so they continue to attack the concept of contingency fee contracts. In your example, if the lawyer for the doctor who lost was hired on a contingency fee contract, that lawyer was paid nothing and had to eat his/her expenses.

I don't think doctors should be afforded some special protection from lawsuits (not anymore than they already have). In fact, I hear more about tests doctors should have ordered but didn't than I do about "defensive" tests. Besides, if tests, referrals and treatments were purely defensive, not medically necessary and not reasonable under the circumstances, then the patient's health insurance company wouldn't pay for them. (I'm not suggesting every patient has health insurance, but there are enough who do to draw this conclusion.) Seriously, if the medical community/medmal insurance industry goes too far with this "defensive medicine to cover their own butts" BS then aren't they basically admitting to fraud on the health insurance companies and medicare? And why should we legislate against paranoia in any profession? I'm always concerned about the ethical standards I have to live by and take steps to protect myself which ultimately means I'm doing more for my client. But I'm not asking for immunity from legal malpractice lawsuits.

[blackraven]

Your totally mistaken about defensive medicine and tests. We order xrays, cat scans and lab work all the time that we know is going to be normal. Its because people want it and demand it even when we explain it is not indicated. We do it because in the 1 in a million chance the patient is right and we would miss something instigating a law suit. People come into the ER with all sorts of compliants and chronic recurrent complaints and we keep ordering the same tests because it like the little boy who cried wolf. Practicing medicine, especially in the ER is like walking through a mine field.

And yes we are admitting to fraud when we admit to defensive medicine. But its not fraud in the sense that we are trying to make money off of it. We are just trying to protect ourselves and also trying to give patients what they want and not piss them off.


Concerning malpractice reform and liability-
Spoken like a true lawyer. God forbid there should be reforms in malpractice and product liability where it would cut into your income.
Why do you think that when you buy a lawn mower, it says in the instructions to not use to trim your hedges or bushes. Because some schmuck did this and severely injured himself and some lawyer and sympathetic jury ruled in his favor.

Or years ago there was an anti nausea drug called Bendictin. It was the only drug that truly worked for morning sickness in pregnancy. Millions of women took this drug and it helped them. But some women had babies with birth defects and they sued the company and won, costing the drug company millions of dollars, even though the incidence of birth defects in women taking the drug was less than the general poplulation. The drug company took it off the market and women were left with no anti nausea medication during that time period. A sympathetic jury and a good law firm can go a long way.



One thing you dont understant about defensive medicine is that we are doing tests that apply to a patients chief complaint, thats why insurance companies pay. We dont order and ankle XRAY for a injured wrist. If some one comes in complaining of abdominal pain and we have seen them several times before for the same problem, we will go ahead and repeat tests knowing that we will find nothing just to cover our asses in case it is like the boy who cried wolf.

I'm not asking for malpractice reform to protect us from gross negligence but I am asking for it to protect Dr's who are practicing standard of care like I said in an earlier post that you completely ignored.



Concerning nuisance suits. They are suits brought about for minor complaints and they are settled out of court because its cheaper for the insurance company to pay out a $5000-50,000 award than go to court. You should know that! Some states are passing legistlation against them.

And many lawyers charge by the hour. When our ex partner sued our group, our lawyer charged $400/hr. We were defending ourselves and not looking for a monetary award where the lawyer would take a percentage.

http://en.wikipedia.org/wiki/Attorney%27s_fee Highway FKG robbery.

If you come into my ER and have a cardiac arrest and I resuscitate you and save your life, I get reimbursed about $300-400. The hospital fee's would be 10 times that!

[dean_martin]

Your totally mistaken about defensive medicine and tests. We order xrays, cat scans and lab work all the time that we know is going to be normal. Its because people want it and demand it even when we explain it is not indicated. We do it because in the 1 in a million chance the patient is right and we would miss something instigating a law suit. People come into the ER with all sorts of compliants and chronic recurrent complaints and we keep ordering the same tests because it like the little boy who cried wolf. Practicing medicine, especially in the ER is like walking through a mine field.

And yes we are admitting to fraud when we admit to defensive medicine. But its not fraud in the sense that we are trying to make money off of it. We are just trying to protect ourselves and also trying to give patients what they want and not piss them off.


income.Concerning malpractice reform and liability-
Spoken like a true lawyer. God forbid there should be reforms in malpractice and product liability where it would cut into your
Why do you think that when you buy a lawn mower, it says in the instructions to not use to trim your hedges or bushes. Because some schmuck did this and severely injured himself and some lawyer and sympathetic jury ruled in his favor.

Or years ago there was an anti nausea drug called Bendictin. It was the only drug that truly worked for morning sickness in pregnancy. Millions of women took this drug and it helped them. But some women had babies with birth defects and they sued the company and won, costing the drug company millions of dollars, even though the incidence of birth defects in women taking the drug was less than the general poplulation. The drug company took it off the market and women were left with no anti nausea medication during that time period. A sympathetic jury and a good law firm can go a long way.



One thing you dont understant about defensive medicine is that we are doing tests that apply to a patients chief complaint, thats why insurance companies pay. We dont order and ankle XRAY for a injured wrist. If some one comes in complaining of abdominal pain and we have seen them several times before for the same problem, we will go ahead and repeat tests knowing that we will find nothing just to cover our asses in case it is like the boy who cried wolf.

I'm not asking for malpractice reform to protect us from gross negligence but I am asking for it to protect Dr's who are practicing standard of care like I said in an earlier post that you completely ignored.



Concerning nuisance suits. They are suits brought about for minor complaints and they are settled out of court because its cheaper for the insurance company to pay out a $5000-50,000 award than go to court. You should know that! Some states are passing legistlation against them.

And many lawyers charge by the hour. When our ex partner sued our group, our lawyer charged $400/hr. We were defending ourselves and not looking for a monetary award where the lawyer would take a percentage.

http://en.wikipedia.org/wiki/Attorney%27s_fee Highway FKG robbery.

If you come into my ER and have a cardiac arrest and I resuscitate you and save your life, I get reimbursed about $300-400. The hospital fee's would be 10 times that!

OK, so you order tests, x-rays and lab work because patients request them. Isn't that part of providing a service? It's like that old saying, "this job would be great if it weren't for the people." Sure, you know more about their health and bodies than they do but you're dealing with the public. Hypothetical: What would you tell a patient who asked for or demanded a particular test that you believe would be negative if that patient had no right to sue? Would you refuse the test?

"Concerning nuisance suits. They are suits brought about for minor complaints and they are settled out of court because its cheaper for the insurance company to pay out a $5000-50,000 award than go to court. You should know that! Some states are passing legistlation against them"

Almost every state in the union has heightened standards for filing medical malpractice lawsuits and somebody's blowin' smoke up your bum if you think a lawyer in one of those states (46 out of 50) would file a medical malpractice lawsuit with the expectation of getting $5,000. Like I said, you can't file a medical malpractice case without expecting to spend $150,000.00 developing the case through trial and in most of those 46 states you have to pay an expert up front for an affidavit stating an opinion that the standard of care was breached. That's $3000 to $5000 up front. BTW, the two medmal carriers in my state don't settle in the cases where liability is clear. They make you try it hoping to wear you down and break your bank. So here's what I know: I've NEVER seen a "nuisance" medical malpractice lawsuit. I've NEVER heard of one in the state in which I practice.

"I'm not asking for malpractice reform to protect us from gross negligence but I am asking for it to protect Dr's who are practicing standard of care like I said in an earlier post that you completely ignored."

I didn't ignore your earlier post. The very definition of medical malpractice/ medical negligence is a breach of the standard of care. First, the plaintiff has to prove the standard of care (by expert testimony), then a breach of the standard (also by expert testimony) and then damages caused by the breach. Therefore, by definition, doctors practicing within the appropriate standard of care are protected.

"And many lawyers charge by the hour. When our ex partner sued our group, our lawyer charged $400/hr. We were defending ourselves and not looking for a monetary award where the lawyer would take a percentage.

http://en.wikipedia.org/wiki/Attorney%27s_fee Highway FKG robbery.

If you come into my ER and have a cardiac arrest and I resuscitate you and save your life, I get reimbursed about $300-400. The hospital fee's would be 10 times that"

Yeah, I know many lawyers are paid by the hour - most are paid by insurance companies with detailed contracts requiring detailed billing. These companies perform audits. They go into law offices and take over the books and files for days. I couldn't work in a firm that represents insurance companies. That's just me. I understood what you were saying about your group getting sued by a former partner. I was pointing out what the lawyer for the losing side was probably paid - nothing.

"Concerning malpractice reform and liability-
Spoken like a true lawyer. God forbid there should be reforms in malpractice and product liability where it would cut into your income."

I explained that medical malpractice is not a big part of my law practice. "Reforms" are not going to cut into my income. But we've had "reform" under the guise of doctors leaving because of jury awards and malpractice premiums once in the 80s and twice in the 90s. To borrow your phrase, it truly was the boy crying wolf. Premiums didn't go down. The insurance lobby behind the campaign admitted AFTER successfully pushing Draconian legislation that premiums weren't going to be lowered. So no, so-called reforms in this area won't effect my bottom line much but I can't reconcile them with my sense of fairness and civil justice. People can be duped into giving up whatever rights certain interests don't want the people to have. If you don't want your Constitutional right to a trial by jury in a civil case, that's fine, but I took an oath to support the Constitution when I became a lawyer. My clients depend on that right for justice which is monetary compensation for injuries most of the time. If you don't like it then your beef is with the founding fathers and hundreds of years of common law, not me. This is not an income issue with me.

[E-Stat]

Your totally mistaken about defensive medicine and tests. We order xrays, cat scans and lab work all the time that we know is going to be normal. Its because people want it and demand it even when we explain it is not indicated. We do it because in the 1 in a million chance the patient is right and we would miss something instigating a law suit.

That is exactly what a brother-in-law of mine tells me who is a family practitioner. He says the practice requires it. BTW, he is also a big believer in exercise and is a marathon runner himself. Last weekend, he and I ran a local half-marathon while our wives walked it. He only did the half because he is running a full one this weekend!

rw

[Feanor]

Okay, what is this? A discussion on the issues surrounding Universal Healthcare or on Christian Ethics? God, lemme get a beer!

Very largely the healthcare debate in the U.S. is a moral debate. Fundamentally universal healthcare works very well in most other juristictions and -- from a practical perspective -- would work well in the U.S. too. Apart from frank self-interest, the objections aren't practical but philosophical, ethcal, and moral. In as much as they are these, they are also religous in that religion underlies all of these (for many people).

So no, personally I will not avoid religious commentary where religion conditions peoples' attitudes on healthcare of other issues.

[GMichael]

But religions are not against healthcare. They are only against changing the healthcare before we know what the changes will be. The plan needed to be laid out for everyone to view before it could be accepted.

[markw]

Very largely the healthcare debate in the U.S. is a moral debate. Fundamentally universal healthcare works very well in most other juristictions and -- from a practical perspective -- would work well in the U.S. too. Apart from frank self-interest, the objections aren't practical but philosophical, ethcal, and moral. In as much as they are these, they are also religous in that religion underlies all of these (for many people).

So no, personally I will not avoid religious commentary where religion conditions peoples' attitudes on healthcare of other issues.

For that half of the US citizens that actually pay any taxes at all, that's quite a burden on them. They can barely pay for temselves.

And while we're at it, it's only your hatred for religions that causes you to drag it into the argument and into the dirt every chance you get

Let's be honest, shall we? If you weren't forced to subsidize it by your country, you wouldn't be for it either. The religious and moral aspect is simply icing on the cake for you and a chance to try to look like you are taking the high road by choice, which you are not. You have no choice.

[Auricauricle]

Feanor, I agree with you in the sense that many of the decisions and discussions in this forum are of great moral importance, I see religion as being an issue that should be left out. I also agree that much morality is informed by religious sentiment, piety and philosophy are different sides of the same coin.

Since it looks like the mire of medico-legal quandries will hold us fast, is there another way to address the concerns of patients/lawyers and medical-professionals/hospitals? How about addressing such needs with a realistic appraisal? Increasingly, we are finding patients who are more intelligent and informed than before. These patients are often quite savy to the current state of the art technologies available, but are reluctant to embrace the fact that even these have their limitations. In other words, how much dialog with patients that looks at prognosis and outcome is frank and honest and how much of it is sugar-coated with false expectations?

[Feanor]

...
Let's be honest, shall we? If you weren't forced to subsidize it {healthcare?} by your country, you wouldn't be for it either. The religious and moral aspect is simply icing on the cake for you and a chance to try to look like you are taking the high road by choice, which you are not. You have no choice.

Nonsense.

[Feanor]

Your totally mistaken about defensive medicine and tests. We order xrays, cat scans and lab work all the time that we know is going to be normal. Its because people want it and demand it even when we explain it is not indicated. We do it because in the 1 in a million chance the patient is right and we would miss something instigating a law suit. ...

Wow, great! Doctors & lawyers squaring off: I love it.

It would seem to me a serious obstacle to a US healthcare system. An economical healthcare system will require some constraint on frivilous lawsuits. It might also require constraints on procedures that are costly but unproven in terms of medical benefit. These are two different things but have in common that they require standards of practice that can override the whim of doctors or patients. Is this socialism or just good governance?

But getting back to the lawsuit issue, I suspect US culture is a big factor. Apparently the US is among the most ligious nations in the world; accordingly it has one of the world's highest lawyer to general population ratios. What's to be done?

Well maybe a 50% cull of lawyers would help -- just joking (humm...or not). Now lawyers can jump in and correct me where I'm wrong, but I can think of two or three things that encourage litgiousness:

• Percentage-defined conditional fees
• Unlimited pain-and-suffering awards
• Punative damages paid plaintiffs and their lawyers.

Perhaps lawyers and doctors are alight in this respect: they can generate demand for their own services, not just respond to it. Lest there be any doubt, doctors can do this by booking return visits, indicating unnecessary tests, and prescribing superfluous treatments. (You can see how doctors & lawyers work hand-in-glove on this.)

With regard to the doctors, at least one Canadian province notoriously limited the number of medical licenses as a means to control medical costs there. Does it sound counter intuitive? Greater supply ought to reduce prices, right? Not it the suppliers can create their own demand.

[dean_martin]

Wow, great! Doctors & lawyers squaring off: I love it.

It would seem to me a serious obstacle to a US healthcare system. An economical healthcare system will require some constraint on frivilous lawsuits. It might also require constraints on procedures that are costly but unproven in terms of medical benefit. These are two different things but have in common that they require standards of practice that can override the whim of doctors or patients. Is this socialism or just good governance?

But getting back to the lawsuit issue, I suspect US culture is a big factor. Apparently the US is among the most ligious nations in the world; accordingly it has one of the world's highest lawyer to general population ratios. What's to be done?

Well maybe a 50% cull of lawyers would help -- just joking (humm...or not). Now lawyers can jump in and correct me where I'm wrong, but I can think of two or three things that encourage litgiousness:

• Percentage-defined conditional fees
• Unlimited pain-and-suffering awards
• Punative damages paid plaintiffs and their lawyers.

Perhaps lawyers and doctors are alight in this respect: they can generate demand for their own services, not just respond to it. Lest there be any doubt, doctors can do this by booking return visits, indicating unnecessary tests, and prescribing superfluous treatments. (You can see how doctors & lawyers work hand-in-glove on this.)

With regard to the doctors, at least one Canadian province notoriously limited the number of medical licenses as a means to control medical costs there. Does it sound counter intuitive? Greater supply ought to reduce prices, right? Not it the suppliers can create their own demand.

How do percentage-defined conditional fees (contingency fee agreements) encourage litigiousness other than by providing a person/individual an oppurtunity to access the court system? The lawyer who takes a case on a contingency fee has to advance all expenses of litigation and if the case is lost the lawyer eats those expenses and gets no fee. No lawyer can stay in business if he/she does not evaluate/screen cases very carefully before taking them. In other words, the case has to have merit. Our courts are clogged with cases of business against business in which lawyers on both sides are paid by the hour, but we don't hear about that until one reaches the U.S. Supreme Court like the Victoria's Secret case a couple of years ago in which Victoria's Secret tried to put a sole proprietorship out of business because it was using a variation of their name.

You have to track cases all the way through to the appellate decisions. Damages for pain and suffering and especially punitive damages are almost always reduced, if not outright reversed, by the appellate courts. Admittedly, there are no hard and fast rules for a jury's award of damages for pain and suffering, but there must be some evidence that the plaintiff actually experienced/experiences pain and suffering. Then 12 adults (or 6 in Federal Court) decide on an amount based on the strength of the evidence and their common sense. Punitive damages require evidence of intent to harm or defraud or a reckless disregard for the health and safety of others. Such damages are intended to punish and deter. The jury has discretion in awarding the amount, but on appeal there is a very complex, multi-tiered analysis to determine whether the amount violates the defendant's due process rights. Claims for punitive damages often don't even make it to the jury because the evidentiary burden is so high. The evidence of intent or reckless disregard must be clear and convincing to support an award. This is just below the "beyond a reasonable doubt" standard in criminal cases. Only claims that are supported by "substantial" evidence ever make it to the jury. Substantial evidence is evidence of such weight and quality that fair minded persons can reasonably infer the fact sought to be proved.

What's to be done, you ask? If you want to do away with civil lawsuits or severly limit them, then amend the U.S. Constitution and/or every state constitution that preserves the right to trial by jury in civil cases (all 50) and overturn hundreds of years of English and American common law. Then, folks can settle their disputes in back alleys rather than in a civilized manner. In fact, our civil justice system can be traced back to the Law of Moses which imposed civil liability for digging a pit but failing to cover it, allowing animals to cross and damage another's property, starting a fire and allowing it to get out of control, and, most interestingly, building a flat roof for gatherings but failing to construct protective rails to prevent people from falling off. Heck, they had the one-gore rule for oxen. The first time your ox gored someone you were in the clear, but if your ox had displayed propensities to gore and subsequently gored someone, then the ox was destroyed and you were sentenced to death. HOWEVER, you could pay money damages in lieu of execution. As a group, we trial lawyers have been demonized so we've had to back up what we do with the Bible:

You shall not pervert the justice due to your poor in his suit. Exodus 23:6.
Maintain the rights of the poor and needy. Proverbs 31:9
Seek justice, correct oppression, defend the fatherless and plead for the widow. Isaiah 1:17

And again, this notion that there is a problem with "frivolous lawsuits" is propaganda. I've never filed one and I've never seen one filed by a lawyer. If a truly frivolous lawsuit is filed it's generally filed pro se by an individual and most often by an inmate/prisoner. If a lawyer files a "frivolous" lawsuit procedural rules are in place so that it will be dismissed within 60 days and the lawyer who filed it is personally subjected to monetary sanctions. Eventually, license suspension and disbarment are possibilities. Every lawyer, law professor, judge, and lawmaker (and non-lawyers if they think about it) knows that no lawyer can make a living filing frivolous lawsuits.

I have nothing against doctors and love my own. I respect several who often treat clients of mine. I respect them and respect and rely upon their opinions to help my clients. In this health care debate there are certain interests who will use this as an oppurtunity to severly limit lawsuits citing false or skewed data to support their position. I'm trying to argue the other side and say be skeptical. On the other hand I'm not opposed to some reasonable limitations on lawsuits against doctors, but are they necessary to bring down health care costs when most states have already adopted reforms to protect doctors from lawsuits and lawsuits represent such a small portion of the total health care costs? Less than 4% of the total annual health care costs are attributable to lawsuits and defensive medicine. Why are we focusing so much attention and energy (much of it negative) on this small percentage? If you already hate lawyers then you probably haven't read this far and you're not going to listen to me anyways.

[Feanor]

Thanks and well argued, Dean, no doubt you're a good lawyer.

So if the items I mentioned aren't valid, I guess you'll just have to go with the cull, right?

How do percentage-defined conditional fees (contingency fee agreements) encourage litigiousness other than by providing a person/individual an oppurtunity to access the court system?
....

Well I guess you could say that that's part of the problem in-and-of itself. With all the risk shifted to the lawyer, who wouldn't go for it?

I don't think lawyers invented the contingent fee approach out of altruism. It stands to reason the with %-based fees, if you feel your chances aren't not so good, you just improve the odds by increasing your percentage. And also of course, going for absurd pain-and-suffering and punative damages just increase the payoff.

Here's my though on pain-and-suffering. How do you quantify what P&S is worth? And how much can it be worth over and above substantive damages? Something, but I think it ought to be limited. I once heard that in Canada (or perhaps one province or another) it was limited to $100k.

As for punative damages, I certainly believe in them. But I believe they ought to be paid to the public receiver, not the plaintiff or his/her lawyer. If I'm not mistaken, (and admittedly I might be), punative damages do (or did) not exist in Canada.

[dean_martin]

So if the items I mentioned aren't valid, I guess you'll just have to go with the cull, right?


Well I guess you could say that that's part of the problem in-and-of itself. With all the risk shifted to the lawyer, who wouldn't go for it?

I don't think lawyers invented the contingent fee approach out of altruism. It stands to reason the with %-based fees, if you feel your chances aren't not so good, you just improve the odds by increasing your percentage. And also of course, going for absurd pain-and-suffering and punative damages just increase the payoff.

Here's my though on pain-and-suffering. How do you quantify what P&S is worth? And how much can it be worth over and above substantive damages? Something, but I think it ought to be limited. I once heard that in Canada (or perhaps one province or another) it was limited to $100k.

As for punative damages, I certainly believe in them. But I believe they ought to be paid to the public receiver, not the plaintiff or his/her lawyer. If I'm not mistaken, (and admittedly I might be), punative damages do (or did) not exist in Canada.

I wasn't going to touch the cull plan. I'd only dig a deeper hole.

I see your perspective on %-based fees and what you say plays a role sometimes, but it is an acceptable contract arrangement for those who couldn't pay to hire a lawyer otherwise. Upping the percentage doesn't improve your odds of winning, but it can make the risk more palatable.

Quantifying P&S is debated in the legal community as well. It's largely discretionary with the jury and the law doesn't provide them much in the way of guidance. A young person who is expected to suffer a lifetime of p&s from injuries caused by someone else should be awarded more than the person who is able to return to work and function at the same level as pre-injury. The only measuring sticks are certainty, degree and duration and it's up to the jury to decide how much it's worth. Some states have capped p&s damages, but it's not the jury that applies the cap. It's the judge who reduces the award after the jury returns its verdict.

The concept of paying all or part of a punitive award to the state has been discussed and attempted as well. In my state, the legislature passed a law that included a provision for payment of part of a punitive award to the state. The law was struck down as unconstitutional. I'm can't remember what part of the statute was found unconstitutional and why. I'd have to look it up.

[nightflier]

Feanor, I agree with you in the sense that many of the decisions and discussions in this forum are of great moral importance, I see religion as being an issue that should be left out. I also agree that much morality is informed by religious sentiment, piety and philosophy are different sides of the same coin.

I must apologize for bringing religion into this discussion. My only point was that there seems to be some hypocrisy from those who oppose universal healthcare the most.

The reality is that a good Christian should not judge, but just offer help where it is needed, even to Pharisees. Isn't that the Samaritan lesson? But what I've heard more of than anything else, is the libertarian argument that the sick and unfortunate find themselves where they are by choice. I think there is a good argument to be made against that, but even if that is were case, it is not the Christian way to judge, but rather to offer help in spite of how badly we Christians may perceive the unfortunate to have contributed to their own misery.

Given that a good number of us Americans do let our Christian values determine our political opinions, I don't think it is out place to bring it up here. After all, we are talking about the one behavior that is most lauded in our religion. Likewise it is a founding principle of Judaism as well as Islam. I am not as familiar with non-Judeo-Christian beliefs, but I imagine that this is true there as well. In any case, for us Americans who are mostly Christian, this definitely does bear on the discussion.

Leaving the Christian argument aside, I am a bit troubled by the other libertarian argument that some people make about living in isolated small towns or having the liberty to run marathons. While this is great for those of us that can make those choices, the vast majority of Americans can not. The vast majority of us don't have those luxuries. Moreover, the potential risks for not addressing our healthcare shortcomings will also be felt the most in those same environments. The worst cases like epidemics, natural disasters, and catastrophes will most severely affect them. In turn, these mergencies be much worse because we failed to address them there as a result of an opposition that is rooted largely in a reality that only a few of us can boast of.

Interestingly, I also consider having the time to run marathons, eating expensive organic foods, and having the means to live far from others, a rather non-Christian argument to make, when used in the context of this discussion.

Regarding smoking, I agree that it is bad for people and that it is also an over-vilified bête noire, when so much else in our environment is also bad for us and gets nary a mention. But just like obesity, the current system already has penalties for these personal life-choices. There is no reason to believe that the proposed healthcare legislation will too; I can't really imagine it won't. I therefore simply don't agree that these factors should weigh so heavily on the discussion.

What I do consider quite relevant (although I must admit I don't enjoy reading about it), is the discussion related to the way that our litigiousness imparts such a significant cost on the healthcare system. Certainly this is one factor that separates American society from any other Westernized society. I know from experience that people in Europe, Latin America, and North Africa just don't sue each other as much. This gives medical care more breathing room to do it's job unfettered by fear of litigation. It is quite possible that we could make the whole healthcare debate obsolete by addressing this larger issue. But I'm pretty sure that our love of lawsuits is so rooted in our ideals, our culture, and dare I say, our mores, that this just isn't possible.

I suppose this leaves us with the question: will healthcare reform assist in addressing the larger issue of our cultural proclivities, or will it be dwarfed by it?

[GMichael]

I must apologize for bringing religion into this discussion. My only point was that there seems to be some hypocrisy from those who oppose universal healthcare the most.

The reality is that a good Christian should not judge, but just offer help where it is needed, even to Pharisees. Isn't that the Samaritan lesson? But what I've heard more of than anything else, is the libertarian argument that the sick and unfortunate find themselves where they are by choice. I think there is a good argument to be made against that, but even if that is were case, it is not the Christian way to judge, but rather to offer help in spite of how badly we Christians may perceive the unfortunate to have contributed to their own misery.

Given that a good number of us Americans do let our Christian values determine our political opinions, I don't think it is out place to bring it up here. After all, we are talking about the one behavior that is most lauded in our religion. Likewise it is a founding principle of Judaism as well as Islam. I am not as familiar with non-Judeo-Christian beliefs, but I imagine that this is true there as well. In any case, for us Americans who are mostly Christian, this definitely does bear on the discussion.

Leaving the Christian argument aside, I am a bit troubled by the other libertarian argument that some people make about living in isolated small towns or having the liberty to run marathons. While this is great for those of us that can make those choices, the vast majority of Americans can not. The vast majority of us don't have those luxuries. Moreover, the potential risks for not addressing our healthcare shortcomings will also be felt the most in those same environments. The worst cases like epidemics, natural disasters, and catastrophes will most severely affect them. In turn, these mergencies be much worse because we failed to address them there as a result of an opposition that is rooted largely in a reality that only a few of us can boast of.

Interestingly, I also consider having the time to run marathons, eating expensive organic foods, and having the means to live far from others, a rather non-Christian argument to make, when used in the context of this discussion.

Regarding smoking, I agree that it is bad for people and that it is also an over-vilified bête noire, when so much else in our environment is also bad for us and gets nary a mention. But just like obesity, the current system already has penalties for these personal life-choices. There is no reason to believe that the proposed healthcare legislation will too; I can't really imagine it won't. I therefore simply don't agree that these factors should weigh so heavily on the discussion.

What I do consider quite relevant (although I must admit I don't enjoy reading about it), is the discussion related to the way that our litigiousness imparts such a significant cost on the healthcare system. Certainly this is one factor that separates American society from any other Westernized society. I know from experience that people in Europe, Latin America, and North Africa just don't sue each other as much. This gives medical care more breathing room to do it's job unfettered by fear of litigation. It is quite possible that we could make the whole healthcare debate obsolete by addressing this larger issue. But I'm pretty sure that our love of lawsuits is so rooted in our ideals, our culture, and dare I say, our mores, that this just isn't possible.

I suppose this leaves us with the question: will healthcare reform assist in addressing the larger issue of our cultural proclivities, or will it be dwarfed by it?

You are confusing being against changing to a health plan that we don't know enough about with being against healthcare. They are not the same thing.

[dean_martin]

What I do consider quite relevant (although I must admit I don't enjoy reading about it), is the discussion related to the way that our litigiousness imparts such a significant cost on the healthcare system. Certainly this is one factor that separates American society from any other Westernized society. I know from experience that people in Europe, Latin America, and North Africa just don't sue each other as much. This gives medical care more breathing room to do it's job unfettered by fear of litigation. It is quite possible that we could make the whole healthcare debate obsolete by addressing this larger issue. But I'm pretty sure that our love of lawsuits is so rooted in our ideals, our culture, and dare I say, our mores, that this just isn't possible.

I suppose this leaves us with the question: will healthcare reform assist in addressing the larger issue of our cultural proclivities, or will it be dwarfed by it?

Significant cost? 3% of annual health care costs spent on defensive medicine due to fear of lawsuits. 0.5% of annual health care costs spent on settlements, jury awards and associated administrative costs. (3% + 0.5% = 3.5%) Be reasonable and make reasonable rather than Draconian reforms based on reliable data is all I'm saying.

When our founding fathers left Europe, they thought it was important to include a right to trial by jury in civil cases in our Bill of Rights. But I guess we can exempt health care providers from our cultural proclivities.

[blackraven]

Dean, Dean, Dean, you miss my whole point. I'm just asking for protection for practicing standard or care medicine. But you want Dr's to be able to be sued for a complication that is totally out of our control when we practice good standard of care medicine. Like I said your a true shark hiding behind what many lawyers say that they are protecting the public. WTF are you protecting them from when someone brings a suit against a Dr. for a complication from practicing standard of care medicine or do you not understand what standard of care medicine is? Maybe we should sue lawyers when they lose a case! Why dont we sue auto mechanics when they misdiagnose a problem with a car. Because there's no money! And I'll repeat myself, I'm not asking for protection from negligence, but I guess you think its ok to sue innocent Dr's. Why dont you look up at how many Dr's have committed suicide over losing cases in where they did no wrong. I'm talking about cases that have been reviewed by medical boards. Losing a malpractice case can destroy one's life, but it seems your ok with that.

I'm not saying that law suits account for a large portion of health care dollars, but defensive medicine does and amounts to hundreds of million dollars.

And I guess saving a few hundred million a year in defensive medicine costs and product liability is a drop in the bucket when you consider that health care is a trillion dollar, yes trillion dollar problem.

We have to try and cut the cost of health care in many area's not just one. I for one don't want to hand over 50% of my income to the government to pay for this trillion dollar problem. I'm not willing to become a socialist country just yet. What is the government going to do when they spend all the publics money and it runs out!

[dean_martin]

Dean, Dean, Dean, you miss my whole point. I'm just asking for protection for practicing standard or care medicine. But you want Dr's to be able to be sued for a complication that is totally out of our control when we practice good standard of care medicine. Like I said your a true shark hiding behind what many lawyers say that they are protecting the public. WTF are you protecting them from when someone brings a suit against a Dr. for a complication from practicing standard of care medicine or do you not understand what standard of care medicine is? Maybe we should sue lawyers when they lose a case! Why dont we sue auto mechanics when they misdiagnose a problem with a car. Because there's no money! And I'll repeat myself, I'm not asking for protection from negligence, but I guess you think its ok to sue innocent Dr's. Why dont you look up at how many Dr's have committed suicide over losing cases in where they did no wrong. I'm talking about cases that have been reviewed by medical boards. Losing a malpractice case can destroy one's life, but it seems your ok with that.

I'm not saying that law suits account for a large portion of health care dollars, but defensive medicine does and amounts to hundreds of million dollars.

And I guess saving a few hundred million a year in defensive medicine costs and product liability is a drop in the bucket when you consider that health care is a trillion dollar, yes trillion dollar problem.

We have to try and cut the cost of health care in many area's not just one. I for one don't want to hand over 50% of my income to the government to pay for this trillion dollar problem. I'm not willing to become a socialist country just yet. What is the government going to do when they spend all the publics money and it runs out!

I understand standard of care. I've already replied as to how the legal system views it. Here's what I said earlier:

"I didn't ignore your earlier post. The very definition of medical malpractice/ medical negligence is a breach of the standard of care. First, the plaintiff has to prove the standard of care (by expert testimony), then a breach of the standard (also by expert testimony) and then damages caused by the breach. Therefore, by definition, doctors practicing within the appropriate standard of care are protected."

You don't want doctors to be sued in the first instance when it is shown that their treatment was within the standard of care. I understand that and some states have enacted laws to address that by requiring an affidavit from another doctor (expert witness) that the standard of care was breached. Our legal system is adversarial by design. It makes for a messy and unpleasant situation sometimes. The defendant doctor will have his experts too who say that the standard of care was not breached. The jury will decide based on the evidence and the weight they give to the opinions of the experts. Each party has a right to appeal so there is another level of review available.

My state doesn't have a requirement that an expert's affidavit be filed with the lawsuit but a plaintiff must prove his case with expert testimony. The expert doctor must practice in the same field as the defendant doctor. No lawyer that I know who handles medmal cases files one without having all the medical records reviewed by a doctor and an opinion from that doctor that the standard of care was breached.

Is it a perfect system? No. Pre-screening cases by a medical board or some other entity takes the fact-finding perogative from the jury. In the context of the legal system it places the cart before the horse. I can see where your concerns may ultimately lead. For example, a system where a medical board decides whether the standard of care was breached and then if so a jury can determine damages. But that's such a fundamental change to the legal system that I don't think it will become law. I think where we have a fundamental difference of opinion is on the question of who determines whether the standard of care has been breached.

Maybe some satisfactory middle ground can be reached (hopefully, without resort to name-calling).

Edit: BTW, I have read your posts as thoroughly as my time allows and I have noticed that you have pointed out where the significant costs of health care lie. I almost quoted you in an ealier response to NF who obviously didn't read your post where you addressed the costs of end-of-life care. But since we've butted heads, I wasn't sure that you would appreciate that.