Adversarial Process

Justifying Torture

2005-02-15T00:20:00.000-06:00

Don't miss this article with links to the PDFs of the memos between our new AG and other Justice Dept. lawyers and the State Dept. on the legality of torture. The willingness to find ways to allow for torture in the name of "protecting America" is frightening. Maybe one of the most important legal debates in America so far this century.

Ashcroft - 1, Mouthy Lawyers - 0

2005-02-14T17:50:00.000-06:00

Mr. Ashcroft received a victory Thursday with the conviction of Lynne Stewart. Ms. Stewart was charged with aiding a terrorist organization via her representation of Sheik Omar Abdel Rahman, the convicted mastermind of the first World Trade Center bombing.

Slate's sympathetic take is here, and a great interview here. For a view of those pleased with the conviction, try Free Republic and reformed liberal David Horowitz.

Stewart quote from the interview:

I would say that you never know what life will bring. It could be that sometime in the future, you are, for some reason, focused on by the government as being someone who is against government interest. You’re going to need someone to defend you. I think everyone wants to feel that, when they get someone they can trust, there is no intrusion from the government, that your adversary knows your moves, your innermost secrets.

Basically, I think the government has an interest in deterring lawyers from representing political people. They have an even greater interest, perhaps, in deterring lawyers from representing Moslem defendants…. But I don’t think it’s enough to say, “Oh, that’s Moslems.” Or “that’s other people.” Or “that’s black people,” or “Those were the Japanese.” You have to be able to say, “This could happen to me. This could happen to someone I love. And I want lawyers to fully represent people.”

Maybe I'm the Blind One

2005-02-14T14:38:00.000-06:00

Will someone tell me how damage caps help anyone? Maybe I'm missing something. Here's what I know:

The nation's largest med mal insurer has said the impact on rates is minimal. The evidence show rates go up in states with and without caps and that often states with lower rates don't have caps. And before you say California, you need to make sure you understand what happened pre and post Proposition 103.

So how in the world does this do anything but give insurers a break in those cases where people have been injured the worst? How does it limit "frivolous" lawsuits or even reduce the rate of lawsuits? Do people think cases with those kind of damages won't get filed?

And will someone please explain how it is even remotely possible that periodic payments, another part of the Bush med mal reform, represent any kind of justice or benefit to anyone but insurers?

I'll listen. Maybe not agree, but I'll listen. Remove the blindfold I must be wearing.

ATLA v. Al-Qaeda

2005-02-13T19:07:00.000-06:00

It's on. Get the details here and an interview with Ron Motley on the subject here. Couple of other Ron Motley stories can be found here at Legal Underground.

Speaking of, Evan over there is prolific. I don't see how he keeps up w/ it.

Also, for more of the big dogs of the plaintiff's side impacting society in unusual ways, check out this story on the founder of Wilkes & McHugh, probably the leading nursing home litigation firm in the country.

Damn I'm boring

2005-02-13T11:48:00.000-06:00

Ever since stumbling on the medical blogs (thanks DB) I've been surfing quite a bit. There are some amazing sites out there. And I'm a damn poor writer.

Great reads:

Best legal site without a doubt: Legal Underground- be sure to check the comments for the occasional posts by Ted Olson of Overlawyered. How he has the time for it I don't know. I also like Yeoman Lawyer, in part because I can feel his pain in this post and he brings the perspective of a defense lawyer to the tort reform issue.

Science - Check out Respectful Insolence. Plenty of links to other sites with even deeper subjects I dream of having the time to contemplate.

Medicine - I still stand by my old favorites, Dr. Charles (although he's got an awfully thin skin.), and Rangel are where I go first.

Other - I can't leave out Nate, particularly since the introduction of the Skeptics' Circle, a must read. And of course, Shrinkette, who I don't want to classify w/ the other docs, as her perspective is pretty unique.

Back to the point, it's depressing how uninteresting my writing has become. I think part of it is the legal training, which teaches you to recognize the other side's position and be prepared to refute it. That undermines the kind of unquestioning belief in your own rightness you need to take a position in the first place, because you soon see there are two sides to nearly everything. Yet you then must become relentless in weakening your opponent's argument. Which makes you, at a minimum, a bit of a bore. (What's the difference between accountants and lawyers? Accountants know they're boring.)

The other part is that while I've long harbored a bit of an underdog streak. These days I deal so much with those who just don't have a chance in life. Is a lot of it self inflicted? Of course, but much of it is just the luck of who your parents happen to be and what they expose you to and how much they push you to achieve. So I've become almost Naderesque in my anger toward those who would harm or limit those people even further, at least in the particular arena I'm in every day - law.

Oh well, for those 2 of you who do read this, I'm working on it, so try and be patient. I'll be human once again - I hope.

ATLA is getting it

2005-02-09T10:31:00.000-06:00

but it may be too late. The corporate mouthpieces of Common Good, Overlawyered, and ATRA have been on the offensive for years while ATLA has been working individual senators.

The truth is, we can't compete financially with Bush backers. ATLA has apparently recognized this and is finally getting serious about focusing the message.

A little good news from that Law.com article: "Only 52 percent of respondents to a January poll by the Pew Research Center for the People and the Press felt that the legal system was in need of major reform, and legal reform ranked significantly below other issues like health care and education."

Thanks to Legal Underground for the heads up. Don't miss this link in the article. Particularly the pic of the baby with the shark.

Nail on the Head

2005-02-05T22:08:00.000-06:00

This post by Orac just struck me. I feel exactly the same way in the presence of the truly devout. As Sullivan would put it, "Money Quote:"

"Or, perhaps it is, for whatever reason, my realization that I seem to be no longer capable of such strong, unquestioning belief that makes me uncomfortable when I encounter it."

A Needed Victory

2005-02-05T22:03:00.000-06:00

for the Hogs today over Ole Miss. First road win in a couple of years, and after close losses to LSU, Kentucky, and 'Bama we needed to win a close one for the psyche of our young players.

All Perspective is Gone

2005-02-05T19:15:00.000-06:00

I found this post on Kevin, MD. How sad that it is titled "Tort Reform is Working." A state that hasn't disciplined a guy who has settled or lost 40 malpractice actions in a couple of years now makes it even harder to hold him accountable.

And the amazing thing is that the only evidence that tort reform is "working" is that insurers are making more money. Which, in the end, is what this is all about. And doctors hoping to save a few dollars on their insurance premiums.

I wonder when the new study will come out showing how much less "defensive medicine" is being practiced. Or will that claim just disappear until the next economic downturn when the insurers aren't making as much and come back for more "reform"? Who wants to bet on that? Anyone?

And doctors call lawyers greedy. . .

The Cost of Reliving Your Childhood

2005-02-04T16:24:00.000-06:00

We all know those people who are living through their kids' athletics. They scream at officials during peewee games, belittle the coach in front of the child, and generally act like an ass at every turn, with their children quickly picking up on their attitude and act and emulating them.

Well, it's good to see at least one coach strike back and win. Hopefully all you guys out there screaming at the high schoolers calling fouls on your 5th grader will think twice before cussing them after you read this.

Of course, seeing as how this parent was a doctor, DB may think he should have had a special court made up of other physicians who would understand the terribly unique pressure he's under. This verdict is probably the result of a jury of simpletons unable to understand such complex issues in his mind. I'm sure Common Good will be on the case shortly.

Just above used car salesmen

2005-02-02T09:47:00.000-06:00

We have all heard the oft cited statistic that lawyers rank just above used car salesmen in respectability/honorableness in the public's eyes. (I tried to find the survey link but couldn't - anyone got it?) And as a lawyer, personally I struggle with that every day.

Now, I enjoy a good lawyer joke as much as the next guy. But I cannot pretend the constant attacks don't get to me at times. Beyond the stress of dealing with people in their toughest moments over at times truly heart wrenching issues, which is tough enough, it seems that one can't even turn on the television or open the newspaper without reading another attack on the "excesses" of lawyers. Or maybe I just read too many business newspapers and physician blogs.

Seriously, though, I would say in my 3 years of small town practice, where I actually deal with an individual client on a daily basis, I have gotten cross with maybe 1% of my clients. I have certainly disagreed with clients more often, but I'm talking to the point where we both go our separate ways and neither have anything good to say about the other - although given the privilege issues I usually just end up telling myself. But am I deluding myself? Do the majority of my clients leave thinking I completely screwed them over?

Now, I knew the deal going in, and usually I'm able to rationalize my frustration/anger/disappointment by remembering the clients who did appreciate what I was able to do for them, and realizing the motives of some of those who are on the attack. And I understand that when people come to a lawyer, it's not because things are going well, so their time with me is generally not associated with good times.

Yet I have to ask myself, if for no other reason than because Dr. Charles and Aporkalypse Now over at Woopig accuse me of it regularly, am I blind to my own role and that of my colleagues in this? Self examination is always necessary, and if you do this for a living you know that in any bad situation, there is plenty of blame to go around. If nothing else, the criticisms do make me question my professional actions regularly and consider their perception in a larger arena than just the courts.

At any rate, for those of you interested, Legal Underground, has a discussion on the subject here. A few choice lines from the comments are below and a very strong criticism can be found here.:

"there has been a real erosion of law from a profession into a business, and that is widely known. Lawyers have a unique relationship to the law, and to the Courts, and therefore their use of them is everyone's business. In a former era, at least 30 or more years ago, this was taken much more seriously."

"I hate lawyers because I'm just generally filled with self loathing."

"1. people see us acting for people or companies they dont like (criminals, multinationals etc) even though the public will generally not understand in any detailed way the issues in the case (ie someone says the multinational poisoned the lake, it must be true). So guilt by association"

If you wander to LU, by the way, you'll quickly notice it is a much nicer site than my own, and the writer is more in the St. Nate and Dr. Charles vein in that it's less stilted and far easier to read than mine. My own writing skills have been permanently damaged by the law, I'm afraid. I should sue my Legal Writing professor. Just kidding.

The Billable Hour

2005-01-31T22:16:00.000-06:00

The bain of all who have ever worked for a large (50+ lawyers) firm or in insurance defense. It sounds easy - after all, you're there 8 hours a day minimum. But it's damn hard to (honestly) work on something billable all 8 hours of each day. And if you've done insurance defense, it's even more difficult, with their 3rd party bill reviewers telling you what you should have billed for this and that and what should have been done by a paralegal or secretary.

I am so happy that my practice isn't straight hourly work.

Beware if you're in law school now.

Doubting Thomas

2005-01-31T08:49:00.000-06:00

Nate is starting a Skeptic's Circle for all you cynics and disbelievers out there.

He's still looking for submissions for the initial round. You have until tomorrow night. I would advise not just grabbing something from Snopes, he's probably got that covered.

You have to be excited for them

2005-01-31T08:09:00.000-06:00

No matter what you think about the war in Iraq and how we got there, you have to be excited about yesterday. Check out Andrew Sullivan for some good posts and links. He always seems to have a fair amount of info from Iraq bloggers. More can be found here, here, and a dissenting voice here.

A quote:

"My condolences to the Great American people for the tragic recent losses of soldiers. The blood of Iraqis and Americans is being shed on the soil of Mesopotamia; a baptism with blood. A baptism of a lasting friendship and alliance, for many years to come, through thick and thin, we shall never forget the brave soldiers fallen while defending our freedom and future.

This is a very hurried message, while we are witnessing something quite extraordinary. I myself have voted and so did members of my family. Thank God for giving us the chance."

This taste of freedom may be fleeting, but really, once you have voted, how can the experience not empower you?

HSAs

2005-01-31T07:38:00.000-06:00

Excellent post on Health Savings Accounts can be found here. For many, I think the problem may still be that their financial planners and insurance agents aren't sufficiently well versed in how they can save the consumer money.

While I am often critical of the Bush Administration's embrace of big government, this is one idea I have supported.

On this topic, this is an interesting organization, the Galen Institute, which was founded "to promote a more informed public debate over individual freedom, consumer choice, competition, and diversity in the health sector." Some thought provoking articles in there.

Uniquely Bad

2005-01-23T11:18:00.000-06:00

After a few days on the road, it's finally time to get to that promised update on Common Good. And it looks like just in time, too considering DB's embrace of them recently.

As I've said before, everyone has a bias, yes even me, but they ought to be up front about it. Common Good, like most of its ilk, is not.

Lets start with the leader of Common Good, Philip K. Howard. Who is he? Well, for starters, he's Vice Chairman of Covington and Burling, a worldwide firm with over 500 lawyers. Now, for those of you who don't know anything about mega firms like that, you should know that one can reach a leadership position in these firms generally in one or two ways. Either you're a big time rainmaker, or you do something very specialized very very well.

Given the amount of time Howard spends on the lecture circuit, he is almost certainly a rainmaker. Where does the rain in the Covington and Burling world come from? Here's a short list: Microsoft, the NFL, Computer Associates, Bell Atlantic, Exxon Mobil, Union Pacific, Procter & Gamble, UBS Warburg, GE Capital, Nabisco, JP Morgan, and IBM. In short, a virtual who's who of major US and worldwide corporations. And there is nothing wrong with that, law is a business and these firms have to make money. But understand that they don't work for you and I, and even in their lobbying efforts are representing their clients. You will not find a person who has been jerked around by their insurer on their client list. You will not find someone who has been run over by a drunk driver on their client list, and you will not find someone who has been injured by a physician who has injured numerous people in multiple states. Those people can't afford Mr. Howard's firm.

Common Good is essentially a lobbying organization for these entities. You will not find one single reference to the frivolous lawsuits filed by corporations, like Allstate suing Kraft because the frosted fudge on a pastry was negligently designed, or Wal-Mart piling on KMart over the rotating bag dispensers, or Caterpillar suing Disney over George of the Jungle, or even the long running P&G v. Amway case over P&G's alleged Satanic ties. Nary a word about those cases will be found - but I bet if you filed suit against Kraft because your house burned down after the toaster got the frosting too hot you'd be famous in the tort reform world.

But Matt, you might say, surely Common Good would be opposed to ALL frivolous lawsuits since they are about "Restoring Common Sense to American Law!" The truth is, they're not. And who can blame them? Philip Howard's clients don't pay his firm's lawyers $250+/hour to blast their own ridiculousness. Nor do they pay them that to limit their right to file suit. No, Mr. Howard is paid to limit his client's exposure.

And what better way to do that than by limiting what individuals can pay their lawyers. Note how Mr. Howard and his ilk, in all their chronicles of the legal system's alleged excess, never mention their own hourly rate. Never mention the fact that the individual is battling a corporation with virtually unlimited funds while their own lawyer gets nothing on an hourly basis. Nor do they mention when a plaintiff's lawyer pours hundreds of hours into a case and loses, while they still get paid win or lose. Why is that? Surely Mr. Howard, Mr. Olson, and the rest wouldn't want to tilt the scales of justice even further toward the wealthy, would they?

I note DB's endorsement of special medical courts in his love letter to Common Good. Ask yourself, why are we considering this and who stands to benefit? Ask yourself also, what's the truth behind the statistics being thrown out in support of these things - I think we've already debunked quite a few here. And ask yourself who stands to benefit if his endorsement of this particular "reform" is taken to heart: “Congress ought to consider requiring guidelines for judges and juries to help determine what compensation is reasonable in a given circumstance.” The answer isn't you or I.

The day that 535 people in Washington become more qualified to judge cases they've never seen a word of evidence on than 12 people who have listened to the evidence is the day that limited government in this country dies (and the Bush Administration has already made it pretty sick). Physicians like DB, who claim to have "libertarian" principles, quickly toss aside those principles if they think it will make them a few bucks. A fact they conveniently forget when they are pointing fingers at "greedy trial lawyers."

If you dare to take even an ounce of skepticism into your examination of these tort reformers, you'll quickly find that what we have is a manufactured crisis, done solely to protect those already in power. It's not enough that the monied have control of our legislators, they are now in an all out war on the last place they can be held accountable by ordinary citizens. There is no nationwide epidemic of increased lawsuits by individuals, there is no evidence that juries get it wrong over and over, or that compensation varies wildly. The only real truth out there is that corporations don't want to have their actions exposed to a jury.

We trust juries to sit in judgment on criminal cases, and impose the ultimate sentence of death. Don't let the tort reformers convince you that you are too stupid to judge their actions. You're not ignorant. Don't trade a fundamental American right - trial by jury - just because the wealthiest want to avoid accountability.

Tort Costs

2005-01-18T21:00:00.000-06:00

I know I promised you an uncommon look behind Common Good, but a stat posted on Rangel in response to a comment by me reminded me of something. Common Good will be soon.

One of the tort reformers favorite statistics, in the comments here, comes from a study by an insurance industry consultant known as Tillinghast Towers Perrin,(see here, here, and here):

"In 2003, . . . the tort system cost $246 billion -- meaning that the average American paid $845 for it via more expensive goods and services." It usually goes hand in hand with the percentage of "tort costs" to GDP and states that less than 1/2 of the costs go to the person injured."

Great stat. Oh, I can feel the outrage building up. But Mark Twain, if he was right about nothing else, was right when he quoted Disraeli on statistics. And this may be the finest example of his lament yet.

Let's start with a definition of "tort costs." That's legal fees, judgments, settlements and such, right? Not at all. Tort costs is based on the total amount of liability insurance premiums, and to get the per person number, is merely divided by the number of people in the country. Besides having nothing to do with legal costs, it doesn't even factor in the millions of business entities which carry liability insurance, and at much higher rates than you and I.

Well, how do they come up with the amount? Well, that's what the insurers report, plus they have their own "internal" statistics that they cite at length. Of course, the methodology behind those is never revealed.

So what else is in those "tort costs"? According to the Center for Justice and Democracy "[f]ully 21 percent of so-called “tort” costs are what Tillinghast calls insurance industry “overhead” (e.g salaries of executives, rent and utilities for insurance company headquarters, commission paid to agents, advertising and other acquisition costs). And on top of that, Tillinghast also includes costs like auto insurance liability claims for fender benders, for which policyholders pay insurance premiums, the vast majority of which are settled without any attorneys being hired or anyone being sued. It even appears to include auto medical payments coverage, auto no-fault insurance cases (where lawsuits are prohibited against third parties in most cases), and uninsured and underinsured motorist coverage, when claims are paid to the policyholder by his or her own insurance company."

What's more, they refuse to reveal the methodology behind their claims of how much goes to attorney's fees, how much is noneconomic and how much is economic. For a more detailed discussion of the methodology issue, one can read here.

Perhaps the greatest travesty is that there is literally no acknowledgment of the cyclical nature of insurance in general. Every increase is attributed to the tort system.

This article says the challenge should be to halve tort costs and makes reference to the costs of Western European countries. Disregarding the obvious social safety net differences between the US and Western Europe, I would say the challenge is to get an honest accounting from the tort reformers.

Now, you make look at my links and say they are all merely front groups for trial lawyers, etc. etc. That's fine. But I challenge you to prove them wrong. And if nothing else, I challenge you to realize that there are two sides to every story, and words don't always mean what you think they do. Particularly when a lot of money is at stake.

A correction

2005-01-17T09:18:00.000-06:00

By the way, I've mentioned PHICO several times as one of the reasons for the crisis in Pennsylvania. I should correct myself - that wasn't fair to PHICO. There are a number of large med mal insurers that have collapsed due to financial mismanagement. Here's the lowdown on those good folks. Don't look for this in the AMA update.

Highlights:

RELIANCE

In June 2002, the Pennsylvania Insurance Commissioner filed suit against directors of the defunct Reliance Insurance Co., alleging breach of fiduciary duty and negligence. From 1998 through the first half of 2000, the company’s directors allowed more than half a billion dollars in dividend and other payments to be distributed to holding companies of which Reliance directors were major shareholders. According to an August 2002 Insurance Information Institute Insurance Issues 3 Update, the Commissioner charged the executives with “draining cash from the company to support their ‘lavish lifestyle.’” 14
. . .
Every state has been affected by the insolvency, but those most severely impacted are California, New York and Texas.”15

FRONTIER INSURANCE CO.

In March 2001, the company stopped writing new and renewal business because of mismanaged underwriting and pricing of medical malpractice policies in the early and mid-1990s.16 Frontier’s CEO and president, Harry W. Rhulen said, “The problem really was we lacked the underwriting controls and infrastructure to properly do that type of business.”17

ST. PAUL

A group of Charleston surgeons have sued St. Paul for “grossly poor management” that led St. Paul to drop malpractice coverage.7 The details on that suit can be found here.

MIXX

As explained by Medical Economics in September 2002, “MIIX achieved much of its out-of-state growth by offering low premiums to gain a share of what had become a highly competitive market. In a rush to sign up new policyholders, MIIX may also have taken on an unhealthy amount of high-risk business.”22

And according to a June 2, 2002 New York Times investigative article, the company “performed well enough through much of the 1980’s and early 90’s. But by the end of the decade it was in trouble after it embarked on a rapid national expansion and went public at the height of the stock market boom.”23

Honestly though, I see where they get it.

2005-01-16T21:38:00.000-06:00

It's not all the tort reform proponents' fault. We are all susceptible to the media, and right now the media is dominated by corporate mouthpieces. Those of us who work for individuals have primarily concentrated our efforts on working on legislators more than the public. Personally, I think we may need to start taking the case to the public more, or it may be too late.

But back to the point. There are two or three websites which are most cited by tort reformers. These are Common Good, Overlawyered, and Point of Law. So lets look at some examples of the, shall we say, "straightforwardness" of these sites.

Lets start with Overlawyered and PointofLaw, since they refer to themselves as "sister sites". Here's Overlawyered's most recent post:

"U.K.: Labour backs off ban on fairground goldfish
Fearing ridicule, the Blair government has backed off a clause of an animal welfare bill "which would have outlawed the use of any animal as a competition prize", and which was largely aimed at the popular practice of awarding a goldfish in a plastic bag as a prize at carnivals."

Now, Overlawyered claims to: "explore an American legal system that too often turns litigation into a weapon against guilty and innocent alike, erodes individual responsibility, rewards sharp practice, enriches its participants at the public's expense, and resists even modest efforts at reform and accountability." So what the heck is an article about the British government doing in there? What does that have to do with exploring the American legal system? In short, nothing. Its only purpose is to degrade a legal system, and any system will do, regardless of relevance to the American one.

Why would Mr. Olson want to do that? Because that's how he gets paid. Mr. Olson is employed by the Manhattan Institute, a think tank that talks a libertarian game in its alleged purpose but is really more in line with Bush Republicanism.

The Manhattan Institute's board members consist almost totally of representatives of financial services companies. Their largest donors are foundations which only back right wing causes, and derive their funding from sources such as oil, munitions, mining and banking.

Now, I've got no problem with conservative causes, nor any of the industries above. But Mr. Olson's refusal to publish the ills of his own backers ought to make it clear to the fair minded reader that he's got an agenda. Particularly when he's so quick to point out the biases of others. Although maybe he feels his bias is just so transparent it doesn't need pointing out. After all, his only Enron articles are about the fees charged by the attorneys in the bankruptcy.

Point of Law is Mr. Olson's "respectable" site. It has the same slant, but tries to take a more scholarly turn, apparently being too good to wade through the muck of the British legal system. Here one finds articles about tort reform bills and such. And again, its posters are always quick to spot the bias of the other side, but oddly silent on their own. I guess when you can't let facts stand on their own, you have to engage in a little misdirection.

Tomorrow, we'll take a look at Common Good. It's even more fun, because at least its founder, Philip K. Howard, appears to have been in court at some point. It doesn't seem Mr. Olson has had the pleasure of working in the system he despises so. Maybe his litigation experience was overseas?

Willfully Ignorant or Just Dishonest?

2005-01-15T15:32:00.000-06:00

You be the judge. Maybe I am too close to the issue. I offer the following examples. First, from DB. In response to one of my comments, he (I assume it is him - but I'll gladly correct myself if I'm mistaken) states:

"1) Liability insurers are not widely invested in risky stocks. Physician rates vary widely regionally because some areas have high rates of suits and juries that give hugh awards. Docs moving from Philadelphia (judicial hellhole #8 in top ten) across the river to NJ see their rates WITH THE SAME COMPANY drop dramatically. The company gets the same return on its NATIONAL investments regardless of the states it provides insurance in. So why do the rates drop when docs move across the Delaware river…because the awards there are smaller."

DB is right, liability insurers are not widely invested in risky stocks. Many are heavily invested in bonds, which are paying the lowest interest rates anyone has seen in decades. He's also right that rates vary widely regionally, yet he has no proof that claims vary widely. He has bought the AMA line of "judicial hellholes" without a bit of proof. The truth is, which he should know because I've linked it many times, that the main reason for high rates in PA is PHICO going under.

His (same caveat) other comment is this, and is echoed by Dr. Charles here.

"2)Mr. Bishop implies that reforms that include caps would prevent full compensation. Nonsense. ECONOMIC damages that include all health related/job related costs etc. are NOT LIMITED under any proposals. Only the awards for NONECONOMIC damages (i.e. “pain & suffering") that can be huge after an attorney plays to the sympathy of a jury are targeted for capping. CAPS WORK. CAPS WORK because while premiums in California have still risen since caps, they have risen very minimally compared with a 1400% INCREASE in states like PA without caps. Limiting caps also removes a huge leveraging threat plaintiffs attorneys use to convince MDs/insurers to settle cases."

Now, if you've read any of my posts, you know the difference between economic and non-economic damages. And here's the thing they choose to ignore. That those who don't work don't have economic damages. Well, who doesn't work, you may be asking? Children, the elderly, stay at home mothers. What DB, Charles, and their ilk are saying is that if you are one of those, no matter what the injury caused by the health care provider, no matter how egregious the act, even if you are spending the rest of your life in a wheelchair, blinded, with back pain, anything, your life is worth no more than $250,000. What many physicians make in a SINGLE YEAR. That's right - your ability to walk for a lifetime is worth what they make in a single year if you don't have economic damages. And guess what, that $250,000 doesn't adjust for inflation, so it's worth a little less every year.

Think about that. And the real shocking thing is that their rates aren't even going to go down. As DB well knows, because I've told him, California caps didn't work, and in fact insurance rates increased 450% after caps were enacted until Californians enacted insurance reform. Heck, the insurers themselves will tell you that.

These guys are repeating statistics they don't understand and don't want to understand. They get them from the AMA. 99% of them have never seen a single medical record from these cases they call "frivolous." Most have no concept of how a trial works, or how hard juries work. They know nothing about their insurers - what they make, how they invest it, how much they pay their execs. And the truth is they don't care. They have to believe.

So you be the judge. Are they being dishonest? Are they wilfully ignorant? Or are they really just misinformed and want to learn more? The third one I'll still consider if some of you believe that's the case.

If you're a healthcare consumer, ask yourself - what is your life worth if that provider screws up? How do you know if your provider islike this dentist, or the doctor who committed malpractice on his colleagues, or the physician who gave this nurse an overdose of morphine.

You don't. So don't limit your ability to hold them accountable just because your physician foolishly believes he'll save a few thousand dollars.

Overlawyered? Underlawyered? Just right.

2005-01-15T13:16:00.000-06:00

Our fine friends at Overlawyered, dedicated to "chronicling the high cost of our legal system", lead with this story today.

At first blush, you're thinking: A. Don't go shooting lions and expect bad things not to happen; and B. If a lion charges, fire the first shot in time to get a second one off if the first isn't enough. And, if you're an Overlawyered fan, or should I say believer, you're thinking - damn frivolous lawsuits!!

But guess what - the court agreed with you. This case was dismissed by the federal judge (and being Minn., probably a liberal activist one at that). This case didn't even get to trial. For you nonlawyers, there is something called a Summary Judgment Motion that is basically a motion the other side can file that says: Even if everything this guy says is right, he still doesn't have a case under the law.

And that's exactly what happened here. Some key phrases from the judge's opinion:

- there was "an entire paucity of proof that a mushroomed Bear Claw bullet must cause a larger exit hole. As such, same-sized entry and exit wounds are fully consistent with proper expansion and will not allow a jury to infer defect."

- Rohwer's expert evidence concerning the behavior of wounded lions, "… particularly behavior after a paw shot when the animal is in full charge, is sheer conjecture,"

- "On this evidence, a jury can only speculate as to plaintiff's experts' theories on the subject of bullet expansion," Rosenbaum wrote. "Plaintiff cannot show either defect or causation."

- "His duty to warn argument," Rosenbaum explained, "devolves into a simple 'I say the Bear Claw bullet failed to expand. Therefore ipso facto I should have been warned that it would fail to do so.' "

This is how the law works, folks. There are gatekeepers at every stage. You have to convince a judge, then you have to convince a jury, and then you have to convince an appeals court. One does not simply file suit today and pick up a check from an insurance company tomorrow.

Now, Overlawyered wants you to look at that and say - I'm tired of all these frivolous lawsuits, we need caps, we need to make it harder for people to hire lawyers, etc. etc. They know that the vast majority of people who read their site won't know what stage the lawsuit was in, what happened, etc. But when you follow through with the things Overlawyered supports, it doesn't just hurt people like our great white hunter here.

It hurts people who actually are legitimately injured by a defective product. Like a Remington 700 for example.

Why do you think Overlawyered doesn't have a blurb about that on its site? I guess they don't have much interest in chronicling the high cost of defective products. Wonder why not?

I give up

2005-01-14T22:18:00.000-06:00

I just read Nate's post about me today. And he's right. I'm pissing in the wind.

These guys want and need to believe that somewhere in all this tort reform talk is relief for them. I don't pretend to understand the economics behind how they make a living - few of us on the consumer side of healthcare have any concept of it but I can see they are getting squeezed.

But I do know something about the legal system and about insurance companies. And the evidence is that lawsuits are not responsible for the squeeze they are feeling today by their insurers. I've posted fact after fact, statistic after statistic showing how claims were down. I've explained the history behind the crisis, showed them how damage caps have not worked in states that have them. I've explained the basics behind how insurance works. I've explained how expert witnesses work. I've explained how damage caps hurt the weakest in society. I've even showed them how their own lobbying organizations have sold them out and scared them to death with the threat of litigation. They repeated every line the AMA has, and I explained to them why the picture was incomplete. None of it mattered.

They have to, they need to believe. They need to blame someone, and they don't know how to blame their insurer. And I have to hand it to the insurance industry - the move was masterful. They got in bed with the AMA and scared doctors to death and demonized the one group that holds them accountable. They knew that a contest of insurers v. attorneys was a loser for them, but everybody loves their doctor. After all, they win 70% of the time at trial.

And now my physician friends believe Bush has thrown them a lifeline. And they're going to hold onto it come hell or high water. They're apparently quite a trusting bunch. Next thing you know he'll convince them to have petitions in their offices requiring patients to admit that they believe that there were WMD in Iraq.

Oh well. I've wasted a couple of weeks trying to explain it to them. I should have realized earlier that the facts weren't going to matter. It doesn't affect my bottom line, so professionally there is no loss to me. I just hope that one day they appreciate what they've given up if this tort reform nonsense passes. And I hope it doesn't require someone close to them getting hurt to do it.

Your sites shall henceforth be free of my arguments on the issue, my friends. I'll restrict myself to posting here for my own enjoyment and non-argumentative posts - thanks again Nate for the idea. I didn't realize how cathartic it could be. But I will continue to lurk for the content and the links.

Good luck with getting those rates down. Better not throw those petitions and crisis maps out - you'll need them for the next stock market crash.

The AMA has lost its way

2005-01-14T20:25:00.000-06:00

I've figured out the answer to my previous post. Physicians aren't gullible, they just can't trust their own institutions. Take the AMA for example. The AMA has declared about half the states in the union to be in "crisis".

Well, what constitutes a crisis for the AMA? Let's look at Missouri. The AMA includes the following statistics for Missouri:

"Missouri physicians' faced premium increases for 2003 as high as 50 percent. This was on top of double-digit increases in 2001 and 2002. (Medical Liability Monitor 2003 rate survey)"

"According to the Missouri State Medical Association, more than 30 insurance companies were licensed to write professional liability insurance for Missouri physicians two years ago. Currently, only three are willing or able to write new business. Three companies (PHICO, Chicago and St. Paul) which accounted for almost one third of Missouri's market in 2001, are gone."

The rest of the evidence of a Missouri crisis is just anecdotes, and since I've been told by my doctor friends that my own anecdotes of children screwed by the $250,000 cap aren't relevant, I'll pay them the same courtesy here.

You may be saying - "Curious, surely Missouri insurers have been hit hard by all these frivolous lawsuits, and the AMA just forgot to include it." Well let's see.

According to the Missouri Department of Insurance:

1. Missouri has had caps on noneconomic damages since 1986, during the last "crisis". They started out at $350,000, and adjust for inflation each year. Currently they are at approximately $550,000.

2. Since 1986, Missouri insurers have had to report each claim. New claims against hospitals have declined since 1991.

3. Claims closed with payment against all providers fell to the second lowest level ever – 504, compared to the record of 455 in 2000. Last year’s total fell 12.5 percent from 2002. Only the 158 claims paid in 2001 were lower than the 184 last year. The 2003 total fell 20.3 percent from 2002.

4. Claims closed with payment against physicians fell to the second lowest level on record. Only the 158 claims paid in 2001 were lower than the 184 last year. The 2003 total fell 20.3 percent from 2002. Claims closed with payment against hospitals reached 124, or about the norm since 1998, when a steep decline began leveling out. By contrast, paid claims against hospitals totaled 227 in 1989.

5. Payouts to malpractice victims dropped substantially in 2003. Insurers’ overall losses paid to malpractice victims dropped from $118.7 million to $93.5 million last year, or by 21 percent. The decline in payouts produced the lowest cash-flow ratio – the percentage of revenues actually paid in benefits – since 1994. Malpractice insurers paid out 45 cents of each premium dollar in coverage written in 2003 while unlicensed but legal surplus lines insurers paid out only 24 cents. Such low levels usually signal that rate hikes are overshooting losses as an insurance cycle peaks; normal cash-flow levels are in the 60 percent range.

6. Insurers’ payouts to victims of physician malpractice dropped more steeply, from $79.4 million to $52.9 million, or by 33 percent. The payout dropped to 39 cents for every $1 written in physicians’ policies.

7. The number of $1 million-plus awards remained at eight in 2003, or the typical number dating back to 1992. The high was 11 in 1996. Three awards, all involving hospitals, exceeded $2 million last year.

8. The size of average awards stayed essentially flat in 2003, rising less than 2 percent to $211,502. The typical or median award payment in Missouri is lower -- $125,000. Average awards have stayed on a plateau since 2000, when they jumped substantially. Average awards rose 8.1 percent last year for claims against physicians; higher economic damages for lost wages and future medical care accounted for all but $3,050 of the $18,253 increase in average 2003 awards against physicians.

9. The average paid claim in 2003 involved a permanent, “significant” injury such as deafness, loss of a limb or loss of an organ, based on insurance company evaluations of the claims. The rating continues the general increase in disability for paid claims over the past 15 years. For paid claims involving physicians, the injuries were more severe.

Now, some more info. Of the three companies that the AMA reports pulled of Missouri, one went under due to financial mismanagement, and the other had over a billion dollars in reserves that it released throughout the 1990s.

Also, according to the Department of Insurance, SEVEN new companies are writing new business.

So why are Missouri physicians facing such increases? Well, let's look

Now, why would the AMA not tell the whole truth? Who do they represent? Doctors? Or insurers?

Gullibility

2005-01-14T13:22:00.000-06:00

Physicians are generally smart people, I assume. The ones I know are. I would bet med school is significantly more difficult than law school, at least across the board. The top schools in both may be comparable. But generally, you're going to have to be pretty sharp to handle it.

So why do they believe their insurers wholeheartedly? I read a line on DB's site that said, essentially "when someone sues an insurer, my premiums go up."

Now, given all the evidence out there, including evidence from their own trade magazines, would they believe such a statement? Why do they trust the word of the same companies that jerk them around on being paid for services they perform. Why do they trust anything and everything they say about frivolous litigation?

You couldn't get a physician to contradict another physician's diagnosis without giving them every medical record you've had for 20 years, yet these guys can second guess juries that heard weeks of evidence merely by reading a newspaper column. Where is the same skepticism for the insurer's claims?

I wonder if it's because they feel so helpless at the hands of insurers that they've just given up hoping from any concession from them. I can understand that, I deal with insurers quite often. But you'd think a profession devoted to helping and healing would not impose something as draconian as $250,000 in caps on non-economic damages.

That falls hardest on those in the weakest financial position. Think about this - physicians would give for a lifetime of pain and suffering what many of them earn in a single year.

And the really amazing thing is that many of these supporters of caps are self described libertarians. Libertarianism is about maximum power to the individual. What could proscribe that more than taking cases out of juries' hands and giving government the power to determine damages?

Nothing if not resourceful

2005-01-13T01:22:00.000-06:00

You just never know when underwear will come in handy.

The Importance of Class Actions

2005-01-12T23:02:00.000-06:00

Class actions are under attack by corporate interests, and like other tort reform proposals, it has nothing to do with fairness. It's all about making it harder to hold those in power responsible.

A class action allows a large group of people with small claims to hold an entity accountable when it would otherwise be cost prohibitive. Current Bush Administration dogma is that is wrong, and as usual, they focus on how much the lawyers make v. how much the individual class members get. Of course, without the lawyers and the ability to file class actions, the wrongdoer gets away with it altogether.

Let me give an example that my physician friends can relate to, an actual case that recently settled. A few years ago suits were filed on behalf of medical societies and their members against Cigna HealthCare alleging fraudulent reimbursement practices and failure to pay legitimate bills. Now, individually the bills might have been as little as a few thousand, and litigating each of them against Cigna would have not been worth the cost.

So the court, over the defendants' objections of course, authorized a class of some 700,000 physicians. A number of plaintiff's firms, which were handling cases all over the country, negotiated a settlement wherein a physician had a couple of options. They could take a set amount in reimbursement out of $30 million pool or they could resubmit their claims and be paid in full (a simplification but you get the point). In addition, Cigna agreed to reform its reimbursement practices to make them more transparent and to put aside $15 million for a foundation to help reimburse physicians treating the indigent.

The counsel for these physicians was paid $55 million by Cigna, in addition to the above settlement terms.

Now, if all you hear is Physician X only got $1,000 while the lawyers got $55 million, you're thinking that's unfair. But consider what Physician X was looking at before the class action. He's facing, at its cheapest, a day in small claims court facing a defense lawyer. That alone cost him $1,000 in lost time. Yet with the class action, because the lawyers fronted all the costs, and did all the legwork (likely thousands of hours) without pay unless they won he's recovered $1,000 with no money out of his pocket. Of course, being a settlement, he may recover a little less than he billed - but it's still a recovery he didn't have and probably had no hope of getting. And he can opt out if he wants. He and 699,999 others.

Making this process more difficult or longer (via federalizing it and putting all class actions in already overburdened federal courts), or making it harder for the injured party's lawyers to get paid, does not help the vast majority of us. In fact, it only hurts us. Who exactly does the President represent these days?

Sex Education

2005-01-12T20:41:00.000-06:00

You want to educate your children? You want to give them something more valuable than private schools, tutors, piano lessons, SAT tutorials, and help with their homework?

When they are teenagers, take them out of school one day a week for two or three weeks and take them to divorce court.

Now, I do domestic work only rarely these days, but most lawyers who go on their own or in a small firm have to do it to make ends meet, and I am no exception. Hell, some sick bastards actually specialize in it.

I have argued over $3 Christmas ornaments. I have argued over what county sheriff's office the exchange for visitation was going to be made at. I have argued over whether mama gave the quilt to them as a couple, or just her loving son. I have sat down with another attorney and divided up 52 separate tools. I have dragged child support out of sorry fathers. I have gotten custody from sorry mothers who wouldn't leave the boyfriend who beat them in front of the children. And I have seen some of the most pathetic situations you can imagine involving people caring far more about themselves and their money and their new spouse than their children.

Your children need to see this. They need to understand the real consequences of sex or an ill considered marriage (although the two often go hand in hand). The chances that you will contract a STD are minor compared to the chances of being tied to some person you despise for 18 years. They need to know that the brief flurry of excitement surrounding the birth of a child fades with the reality of raising a child with someone you don't really know and aren't sure you like. They need to see what it's like to raise a child without any financial or emotional support because the boyfriend they thought was so cool can't keep a job.

And guess what? The court system will not bring you joy or finality. You will probably have at most a 1/2 day to get across to the judge why you should have custody. If you don't agree, your stuff will likely be sold at auction and you'll get 60 cents on the dollar. Oh yeah, you'll still be responsible for the debt. And you'll have to pay your lawyer.

Your children need to see the desperation and the patheticness (is that a word?) of domestic relations court before they end up there as litigants. They need to understand the true consequences of not seeing a child you love with all your heart every day. They need to see how they are likely tied to one place for 20 years because they had a child there. They need to see how hard it is to find evidence that you can get to the court that the other side is not good for the child. They need to understand that the court now has as much say, if not more, than they do over the child.

I implore you. It will be far more useful than an awkward 15 minute conversation about condoms.

Stop it, I'm getting all verklempt

2005-01-11T08:28:00.000-06:00

Thanks to Medical Madhouse for the shout out in his version of Grand Rounds. For those of you who haven't been through the medical blogosphere, it's basically a roundup of all the best stories of the week from the various medical blogs. Nice summary if you don't want to keep up day to day.

Also, thanks to Shrinkette and Orac for the same. Nice to see that despite our differences, we can still all have some reasonable discussion. And of course I would be remiss if I didn't mention St. Nate, the inspiration for the idea of subjecting the masses to my drivel. (I wonder if you docs can file one of those spam suits against him as a result?)

Which leads me to another point - we do have more in common than we think, and are not just tied together by the battle over medical malpractice. People generally only come to see us when things have gone poorly. They have no idea really how we get things done or the process they are embarking on, and they rely on us completely. We are their only lifeline in a lot of situations. That's an incredible amount of stress to undergo, too much for some, unfortunately.

Plus, from a business standpoint, many of us are small businessmen and women, and in addition to all the above, have to monitor payroll, make the rent, argue with insurers over getting our clients and ourselves paid, plus still have time for meaningful lives for our families. And many of us never realized how hard the business side of our profession was going to be. You can be the best in your field, but learning how to translate that into making a living isn't easy.

I'd say we should focus on our similarities now and again as well.

How do they do it?

2005-01-10T20:53:00.000-06:00

I have a client who is 35 years old. She has had multiple back fusions, so she cannot work. She is in the Social Security Disability process but it's at best a year away. I recently got her a divorce and they share custody. The ex pays $20/wk in spousal support. And she's probably got some mental issues. That is literally all she lives on plus whatever she can borrow from friends. Friends who don't have much more. She only recently qualified for Section 8 housing, but before that moved from home to home.

Sometimes the resiliency of people amazes me. Can you imagine trying to live that way? Having just enough money for gas to go and buy just enough food? And there are people like this all over?

Even more amazing is those people who survive on minimum wage alone. Families, both parents working, feed 3 or 4 kids.

This is not a comment on the nobility of poverty or the injustice of the world, because there are plenty of people far poorer with much harder lives, just a note of amazement. And maybe I'm just more aware of it now or I'm showing my youth, but it seems like there are more of these people now than ever before in my 31 years.

Is it just me?

Doctors filing frivolous lawsuits!!

2005-01-10T17:00:00.000-06:00

Just kidding. But don't kid yourselves - tort reform is about saving corporations money, and they won't stop at limiting their liability from malpractice victims. Just because it's not physicians today, doesn't mean you won't be the next victims of tort "reform":

Fla. Doctor Claims "Conspiracy," Requests Class-Action Lawsuit Against Four Insurers

In what could be a landmark case, a Pompano Beach, Fla. orthopedic surgeon has filed a federal class-action lawsuit claiming Aetna Insurance and three other companies are engaged in a "criminal conspiracy" to pay only a fraction of doctors' charges for emergency room treatment.

U.S. District Judge James I. Cohn has been asked by attorneys representing Dr. Peter Merkle to certify a class-action suit for all doctors having problems with Aetna, Neighborhood Health, Vista Healthplans and Blue Cross Blue Shield of Florida's Health Options.
. . .

"If they pay you whatever they feel like, you might as well close your doors and go fishing," Merkle commented. He said he hesitated about suing insurers "because you don't want to bite the hand that feeds you. But then I realized that the hand wasn't feeding me, it was stealing from me."

The core issue, which providers and insurers have been fighting in the courts for several years, concerns cases when a person with health insurance is rushed to a hospital that is out of his insurer's network. In such cases, the hospitals -- and the doctors who are also out-of-network -- generally bill the health plans at their full rates. The insurers complain that these rates are often obscenely high and have frequently refused to pay them.
. . .

Bruce S. Rubin, spokesman for Neighborhood Health, called the allegations of conspiracy "ludicrous. We've been paying a certain percentage of Medicare for years. It's standard procedure."

The Philly Inquirer puts it nicely

2005-01-10T13:26:00.000-06:00

The issue laid bare for the folks in PA. You have to sign in to their site for the whole editorial, but it's free to do so.

Some highlights:

"Bush last week journeyed to the place that business-funded advocates dubbed America's top "judicial hellhole" to tout his plans to curb citizens' access to the courts. But there was a problem: Both Madison and a neighboring county are seeing a decline in malpractice awards these days, with only one of six malpractice verdicts issued over seven years topping $1 million.

Might as well come to Philadelphia next time, Mr. President. Our civil courts also have been labeled a "hellhole." Yet malpractice filings here, thanks to court-rule changes, recently fell to a 14-year low."

. . .

"What's happening now is that corporate interests want the politicians whom they've generously supported to eliminate both pesky regulation and troublesome torts. The Republicans who run Washington seem eager to comply.

Far worse than "junk lawsuits" would be junk lawmaking that scuttles basic legal protections for citizens."

Evenhanded

2005-01-09T13:23:00.000-06:00

You want fair and just? I got it right here. The most comprehensive and fair article on the current medical malpractice crisis I've seen yet, courtesy of Medical Economics magazine. Thanks to Kevin M.D. for the link.

Limited Government - Dead?

2005-01-09T13:15:00.000-06:00

The med mal debate brings this to mind. A federal intrusion into state court actions ought to fly in the face of traditional republicanism. What happened to the Republicans of '94? Where has the states' rights mentality gone?

Think about it. If someone told you in 2000, prior to the election, that after 5 years, we would have a massive deficit, a nation building project with no end in sight, a proposal for the federal government to take over state courts, an even more complex tax code, and an increase in the ability of the federal government to snoop into our lives, who would you think had won?

Have we all given up our principles in favor of our own personal bottom line? Who cares if it's the biggest entitlement program since the 60s and they lied about the costs - I want my prescription drugs cheaper! Who cares if the government runs a massive deficit because they won't quit spending - I want my tax cut! Who cares if the federal government makes it so that wrongdoers don't have to pay for their harm - my malpractice insurance rates are too high! Oops, I forgot, rates won't go down on that last one. But that's OK, people still think they will, so it counts. Who cares if the government is sending my tax money to churches instead of giving it back to me - my church is getting a cut!

Where are the Republican party principles of individual empowerment? Is the Republican party just Democrats who keep their indiscretions in the closet?

Speaking of the Devil

2005-01-09T13:01:00.000-06:00

Just before his helicopter lifted off, Frist and aides took snapshots of each other near a pile of tsunami debris.

"Get some devastation in the back," Frist told a photographer. Thanks to Andrew Sullivan for tracking this gem down.

Isn't this just the kind of thing John Kerry was hammered for? And this is at least one of the frontrunners for '08 in the GOP?

Jumping Right In

2005-01-07T22:57:00.000-06:00

Let's start at the beginning. Here's a question for any of you physicians that wander over here. The biggest issue where medicine and law meet today is tort reform, specifically damage caps. The President is proposing a $250,000 cap on non-economic damages, aka pain and suffering.

The question is this: Has any insurer promised to lower your medical malpractice rates if this is enacted, and if so, how much and for how long?

In other words, what's the benefit?

Taking some advice

2005-01-07T22:26:00.000-06:00

In response to some advice from Saint Nate, I'm starting my own blog. After stumbling across DB's Medrants one day, I find myself in a discussion regarding medical malpractice on a number of Medical Blogs. These physicians, including Rangel, MD, Dr. Charles, and Grunt Doc, all have very cool sites for those interested in medicine.

What's great about the blogosphere is that it really gives you insight into things that you could otherwise never broach. I mean, who feels like they can call up their physician and simply say "What's up with all this Vioxx stuff?" Yet these guys have detailed discussions on things most of us don't think about. And despite his antagonism toward me, I find Dr. Charles' musings to be extremely well written. At least the non-med mal ones.