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A Doctor's Plan for Legal Industry Reform:

This column in today's WSJ is pretty dang funny, I think.

drunkdriver:
there's no lawyer hate like doctor-lawyer hate.
9.4.2009 10:06pm
Viceroy:
is it supposed to be funny?
9.4.2009 10:19pm
Dave N (mail):
Viceroy,

Like Todd, I thought so.
9.4.2009 10:35pm
Jimmy S.:
Settle down, guys. If you like your current law firm, you can keep it. I promise.
9.4.2009 10:36pm
Upend, Coming:
I like the part where he says that they'll standardize the hours - like lawyers don't basically do that already.

Ex. Reading and marking up a document? 40-50 pages per hour for review - if we do less, our bad, if we do more, our gain.
9.4.2009 10:38pm
Le Messurier (mail):
It's funny because it won't happen. Would that much of came to pass. We'd be better off. ("We" meaning the citezens not lawyers).
9.4.2009 10:58pm
smitty1e:
I thought that the good doctor was as serious as lung cancer.
9.4.2009 11:06pm
santa monica (mail) (www):
Where was the funny part? Really. "Pretty dang funny" is a fairly high bar, and I think it suggests that Todd should read (watch, listen to) some genuinely funny people. I do get that humor is subjective, and I'd have no complaint with anyone who argued that the article made good points (reasonable people could certainly disagree on this). But funny?!?

Perhaps it would help if Todd gives some additional examples of other things that are funny to him. Are the films of Michael Moore funny? Keith Olbermann? Glen Beck? Doonesbury?

(As an aside, I find this a fascinating question in general: I very often ask people that I am getting to know this question. What films do you find funny? What things are 'supposed' to be funny, but actually offend you, or, leave you cold? It's always been amazing to me that a person might possibly not find Monty Python or Fawlty Towers funny. Just doesn't seem conceivable to me. Or, conversely, to find anyone who *does* find Andrew Dice Clay funny.).

But I digress . . .
9.4.2009 11:54pm
Mark N. (www):
I would actually support more public provisioning of lawyers, though oddly enough that's the one actually socialistic element he seems to have neglected. If lawyers were provided in civil suits, for example, there would be fewer instances of what Judge S. James Otero called the use of the federal judiciary to "pound settlements out of unrepresented defendants" because "potentially meritorious legal and factual defenses are not being litigated" by defendants who cannot hire a lawyer.
9.5.2009 12:02am
Off Kilter (mail):
My fellow radiologist forgot steps one and two: Agree to the government providing the payments for half your patients. Agree to your patients being insulated from the costs of your fees by obtaining insurance to cover your basic services.
9.5.2009 12:14am
BGates:
I didn't think the article was very funny.

Jimmy's comment was hilarious.
9.5.2009 12:15am
D.O.:
The idea of electronic legal database is neither funny nor "funny". If we are not there yet we probably will be soon. No?
9.5.2009 12:20am
Leo Marvin (mail):

"Since we are moving toward socialism with ObamaCare"

The comedy was evident from the start.
9.5.2009 1:06am
tvk:
I get the humor, but it loses the shine because the analogy just doesn't work. Throw in a generous government program that provides free lawyers for seniors, employer paid (and taxpayer subsidized) insurance to cover lawyer fees, and grow the legal sector to 16% of the economy, and then doctors can start making comparisons.
9.5.2009 1:27am
eyesay:
It's not funny. It's not satirical. It's not apropos of anything. It's just stupid.

The current system of funding health care is absurd. People without health insurance are charged many times the going rate: absurd. People lose health coverage when they lose their jobs: absurd. Insurers decline to cover valid claims based on silly reasons such as undisclosed teen acne: absurd. People pay for policies for decades and then when they get sick, insurers cancel policies: absurd.

People fret endlessly about bureaucrats getting involved in health care decision-making, but that's exactly what we have now.

People fret endlessly about "death panels" that aren't part of any proposal on the table.

People fret endlessly about government takeover of health care (like the system in the United Kingdom) even though this is not part of any proposal on the table.

Federal health care. Works in Germany. Works in France. Works in Taiwan. Works in Canada. Works in every industrialized country on earth, except the United States, where we pay twice as much for a lower life expectancy and care that's no better than elsewhere.
9.5.2009 4:22am
gwinje:
Yeah. . . boring, sloppy, and wrong. I don't think Dr. Rafal would make a very good lawyer.
9.5.2009 4:46am
/:
People without health insurance are charged many times the going rate: absurd.

Good thing that has nothing to do with the government dictating payments, or there might be an argument against more interference.
9.5.2009 6:33am
Pro Natura (mail):
But seriously, since a foundational principle of our republic is that government should provide all with equal justice under the law, shouldn't we provide equal access to the legal system before we contemplate applying similar strategies to other institutions?
9.5.2009 9:06am
Bill Harshaw (mail) (www):
"dang funny"? No funnier than a Dartmouth grad trying to be country. :-)
9.5.2009 9:35am
vmark1:
Lot of thin skinned lawyers out there...what a bunch of wimps. It is funny.
9.5.2009 11:05am
Modest Proposal:
For those who missed the reference, the subtitle of the article was a "modest proposal," indicating that it was intended to be satirical much like Swift's "A Modest Proposal: For Preventing the Children of Poor People in Ireland from Being a Burden to Their Parents or Country, and for Making Them Beneficial to the Public." At the same time, I think the doctor was trying to point out the injustice of "lawyers" telling doctors how to do their jobs.
9.5.2009 11:27am
DiverDan (mail):
I'm a lawyer, and I thought it was hilarious - after all, if a bunch of lawyers in Congress and the White House consider themselves competent to "reform" the medical industry, which they know next to nothing about (not to mention the fact that previous government intervention is a primary cause of many of the problems with health care), then it is equally appropriate (meaning not at all) that a bunch of Doctors take control of "reforming" the legal industry. And, contrary to the sentiments expressed in some of the comments above, the legal industry is in dire need of reform if we are to ever regain our country's competitive edge.
9.5.2009 11:36am
John Burgess (mail) (www):
I think the provision of government-paid lawyers to all isn't a bad idea. It works, though, only if said lawyers are paid a fixed-by-government wage, as all good proletariates should understand. And of course, all lawyers will be government-provided lawyers.

The subject piece, as satire, is excellent. As public policy, it's even better!
9.5.2009 11:48am
ChrisTS (mail):
DiverDan:

But, aren't the views/voices and interests of doctors being seriously considered in HCR? I know some people are complaining that the 'bunch of lawyers' in the WH and Congress are being excessively attentive to those voices and interests.
9.5.2009 12:25pm
eyesay:
Modest Proposal wrote, “I think the doctor was trying to point out the injustice of 'lawyers' telling doctors how to do their jobs.”

Advocates of reform in the United States are not calling for the creation of a system like in the United Kingdom, where health care providers are working for a government system. We are calling for the creation of a system like most other industrialized countries, where you choose your own doctor, who is not a government employee.

In a modern regulated economy, of course we tell people to some extent how to do their jobs. We tell employers that it's not OK to have 16-hour work days, and we have tighter limits for the transportation industry. We set workplace safety standards for factories, farms, mines, and other sites.

The concept of government regulation to ensure workers are not subject to unnecessary hazards is widely accepted and is not “injustice.”

And the FDA requires that new drugs and new medical devices are tested before they are used on people. This isn't “injustice” either. It's saving lives.

So please stop yammering about the non-existent injustice of the United States finally joining the rest of the civilized world in providing quality health care for all of its citizens, rich or poor, employed or unemployed.
9.5.2009 12:33pm
Don Meaker (mail):
And we can go further. Engineers can design cars and planes specially for lawyers, wherein the controls are expensive, require a long series of random inputs, and give unsatisfactory results only after a three year delay. Further, the operators manual will be filled, like case law, with examples. Underlying principles will change with the latest series of examples the operator has introduced. When Accidents occur, only the Lawyer-operator will be responsible, never the engineer who designed the system.
9.5.2009 12:44pm
Ursus Maritimus:
To be perfectly analogous to "Lawyers using Law to tell Doctors how to do their jobs," it should have been "Doctors using Medical arguments to tell Lawyers how do do their jobs."

Perhaps if nuisance suits were declared an epidemic...
9.5.2009 2:02pm
/:
The concept of government regulation to ensure workers are not subject to unnecessary hazards is widely accepted and is not "injustice."

One does not follow from the other.


This isn't "injustice" either. It's saving lives.

Except that the federal government hasn't been given the role or the authority to do so, it took it anyway. Only the perverted philosophy of saving people from from their own decisions has made waste paper of fundamental law.
9.5.2009 2:03pm
einhverfr (mail) (www):

Perhaps if nuisance suits were declared an epidemic...


Nah, many non-lawyers think nuissance suits are an epidemic. The real challenge is to get the WHO to label it as a pandemic so we can all get immunized.
9.5.2009 2:14pm
Leo Marvin (mail):
DiverDan:

I'm a lawyer, and I thought it was hilarious - after all, if a bunch of lawyers in Congress and the White House consider themselves competent to "reform" the medical industry, which they know next to nothing about (not to mention the fact that previous government intervention is a primary cause of many of the problems with health care), then it is equally appropriate (meaning not at all) that a bunch of Doctors take control of "reforming" the legal industry. And, contrary to the sentiments expressed in some of the comments above, the legal industry is in dire need of reform if we are to ever regain our country's competitive edge.

In other words, "I thought it was hilarious [because I agree with it]." Unless you can find someone who doesn't agree with it, yet also finds it hilarious, you've just explained all of its appeal. And that has nothing whatsoever to do with humor.
9.5.2009 4:17pm
neurodoc:
Bill Harshaw: "dang funny"? No funnier than a Dartmouth grad trying to be country. :-)
According to Todd's brief bio, after Dartmouth he was further educated at Clemson and U VA, where "country" might have been the mode.
9.5.2009 6:51pm
neurodoc:
Leo Marvin: In other words, "I thought it was hilarious [because I agree with it]." Unless you can find someone who doesn't agree with it, yet also finds it hilarious, you've just explained all of its appeal. And that has nothing whatsoever to do with humor.
I'm not sure that DiverDan must find someone who doesn't agree in the main with Dr. Rafal, yet still finds it funny to support his view of it as funny. Must someone who thinks the piece is funny disagree with Dr. Rafal for the most part in order for their opinion on the funny or not question be given any weight?

Isn't "funny," like "beauty," largely, if not wholly, subjective, as santa monica allowed earlier, before opining that this effort was not funny? One can elaborate a theory of comedy, or beauty, but in the end isn't it a matter of personal opinion, that is unless we put it to a vote and let the majority decide the issue.

Isn't one far more like to find satire "funny" if they share satirist's point of view than if they don't?
9.5.2009 7:10pm
neurodoc:
Dr. Rafal: Contingency fees will be discouraged, and eventually outlawed, over a five-year period. This will put legal rewards back into the pockets of the deserving—the public and the aggrieved parties. Slick lawyers taking their "cut" smacks of a bookie operation. Attorneys will be permitted to keep up to 3% in contingency cases, the remainder going into a pool for poor people.
This, Dr. Rafal's first thrust, disappointed. I'm not at all surprised that he would think contingency fee agreements ought to be done away with. Most doctors believe, not incorrectly, that there would be far fewer med mal lawsuits if they were not permitted. The proposal screams self-interest and is fundamentally unfair, though. It would do as much to discourage meritorious claims as non-meritorious ones, and effectively deny most people the chance to seek redress. Dr. Rafal might instead have proposed adoption of the English Rule (loser pays winners costs) in place of the American Rule (each side pays their own costs no matter the outcome), which would also discourage the little guy, which is almost always the would-be med mal plaintiff, from suing, since he can expect to come up against the very big guy, deep-pocketed insurance company standing behind the defendant, but is more easily rationalized, IMO, than a ban on contingency fee agreements.

Not surprising, though, that a physician would fold in such a "tort reform" measure if changes are to be made to our legal system, especially that part which so greatly affects health care providers. In my experience of both as a physician myself and as some who has represented med mal plaintiffs, the only people who are as unreasonable in their thinking about "tort reform" (or "tort deform" as opponents prefer) are trial attorneys. What should be done lies somewhere in between the positions those two opposing sides have staked out.
9.5.2009 7:32pm
anotherpsychdoc (mail):
From the point of view of doctors, law is 'all about property.' Now for a small subset off doctors, Kevorkian and Mengele come to mind, there may be other areas of contact. But for most of us it is about torts and property attempted seized from us over what is typically the statistical exigencies of properly practiced medicine. That makes the practice of medicine lawyer's collateral. With the various Democratic health schemes in which the government makes us credit for which they will be paid, viz Obama's Chicago property or Dodd's Irish property or Rangel's or Emmanuel's Fannie May paycheck, the advantages of that collateral seem further exploited. Really, to tell you the truth we aren't usually laughing about it either.
9.6.2009 2:17am
santa monica (mail) (www):
Anotherpsychdoc,
I have no idea what you are saying. I do gather that you don't like Obama; you don't like Democrat politicians; you don't want changes to the current health system (or, at least, you don't want any changes that have been proposed by Democrats).

I think that I may not be smart enough to get all your references. Can you explain the various points you made (no snark; I genuinely cannot figure out how some Chicago property or some Irish property enters the mix)? So, can you (or someone smarter than me) explain? Thanks. :-)
9.6.2009 2:34am
Edward A. Hoffman (mail):
In California, at least, the health care industry actually does have a lot of control over one segment of the legal community -- lawyers who represent plaintiffs in medical malpractice cases. Perhaps it would be more accurate to say it is the industry's lobbyists who exert this control. Either way, the results have benefited doctors at the expense of the public. For example:

* The industry has imposed a $250,000 cap on damages for pain and suffering, and has made sure this cap has not kept pace with inflation since it was imposed about 30 years ago. Are you going to spend the next fifty years bedridden, in constant pain, and hooked up to a respirator and a colostomy bag? Will you lose out on the opportunity to run and play with your children, and to walk your daughter down the aisle at her wedding? $250,000 is the most you can get for all that suffering. Most plaintiffs probably don't have $250,000 worth of pain and suffering, so this limit doesn't have much of an effect on their cases. It only targets those who have suffered the most serious injuries, thereby discouraging lawsuits only by those who have been most grievously harmed -- and it does this in order to protect the very practitioners who harmed them.

* In addition to limiting the amount of damages that can be recovered, the industry has managed to cap the percentage of the damage award which the plaintiff's lawyer can keep as a fee. Those limits are 40 percent of the first $50,000 recovered; 33 and 1/3 percent of the next $50,000; 25 percent of the next $500,000, and 15 percent of any amount exceeding $600,000. These figures also have not been adjusted for inflation. Since litigating a med mal case takes many hours of attorney time and since these cases are usually difficult to win, the result is that a patient with a good case that isn't a slam-dunk will have a very hard time getting a lawyer. Of course, there are no limits on the amount of fees defense lawyers can collect in order to represent doctors, hospitals, etc. in med mal cases.

* The industry also ensured that med mal plaintiffs have a shorter statute of limitations than plaintiffs with other types of injuries, and that med mal plaintiffs must notify defendants of their intent to sue 90 days before filing suit.

* Additionally, health care providers have more power than other professionals to force their patients into binding arbitration rather than civil trials. The arbitrations are conducted out of the public eye and according to rules largely shaped by the health care industry. Moreover, because doctors, hospitals and their insurers are repeat customers while patients (with a very few, non-foreseeable exceptions) are not, the arbitrators have a perverse incentive to rule in favor of the defense even when they know the plaintiff should win.

*What's more, defendants who are hit with awards of more than $50,000 are entitled to make periodic payments rather than paying a lump sum. This provision not only works to the plaintiffs' direct disadvantage, it also gives lawyers yet another reason not to take on such cases in the first place. After all, if a limited fee isn't enough to discourage you, knowing that you won't collect it for years even if you win likely will be.


In the interests of disclosure, I am a lawyer but I do not take med mal cases. Neither do most of the other lawyers I know well. But I have seen what doctors have been able to do to the legal system, and I can assure you that there is nothing remotely funny about the idea of letting them do more.
9.6.2009 3:08am
Leo Marvin (mail):
neurodoc:

Must someone who thinks the piece is funny disagree with Dr. Rafal for the most part in order for their opinion on the funny or not question be given any weight?

Everyone's opinion counts. But when aesthetic tastes track political ideology, skepticism is in order. Good material will reach at least some people who are hostile to its politics.

For example, I love P.J. O'Rourke, like Penn Jillette, and though I wish it weren't true, sometimes even laugh at Ann Coulter and Mark Levin. Likewise, I have conservative friends who think Tina Fey, Stephen Colbert, and even Janine Garofalo are funny.

On the other hand, have you ever known aside from a few liberals who wouldn't contemplate suicide as an alternative to 90 minutes of Mark Russell or The Capital Steps? Do you know anyone who can say George Soros' name without gagging who was remotely entertained by Rush Limbaugh's foray into satire?

One can elaborate a theory of comedy, or beauty, but in the end isn't it a matter of personal opinion

Of course. At the same time there's a respected tradition of criticism that analyzes and judges art, to a great extent on objective criteria. I'm a big believer in not having to apologize for what you like, and I've got the low brow tastes to prove it. But that doesn't mean we should normalize everything to the point we pretend there's no qualitative difference between Beethoven and Jessica Simpson. So, on the one hand you're correct, there's no right or wrong when it comes to taste. On the other hand there kind of is. There's obviously some tension there, but so be it.

Isn't one far more like to find satire "funny" if they share satirist's point of view than if they don't?

I assume so, and conversely that there's a natural resistance to being entertained by something that offends us. So when we are entertained by something that offends us, I believe that's a good sign more than just pandering is going on. And when the only people laughing are the ones in the choir, it's fair to infer the satire leaves something to be desired.

Of course there are no absolutes, the opposing principles co-exist on a continuum, and you can fill in all the other disclaimers. But as a general matter I think these trends are fairly uncontroversial. Anyway, that's my impression. Is yours different?
9.6.2009 6:47am
anotherpsychdoc (mail):
Santa Monica says, 'I genuinely cannot figure out how some Chicago property or some Irish property enters the mix).' My comments may be too elliptical. All of the examples represent what is usually called the result of 'rent seeking.' In these examples, public policy has been used to direct value in a certain direction. Those who benefited from that happening have repaid or, in the case of the University of Chicago and the Obamas, prepaid on the largesse directed to them. Beyond the University of Chicago, in the Obamas' case a 'not the Tony I know' who had benefited from Obama's directing housing funds his way repaid him by buying the lot next to his house making the deal for the house available to him. The Univ Chicago example has been best discussed in an obscure blog with which you seem to be familiar.

In my experience, I have not been sued for significant mistakes. I have been sued for continuing Zyprexa in a lady already diabetic. I told her I preferred not to prescribe it to her because of dangers that I described, and she objected that it was useful, and we compromised and I prescribed it for her for 6 months before discontinuing it. I have been a reviewer for cases where other extravagant demands have been made on the physician, and yes I have said in a case that the physician conduct was not according to practicing guidelines and endangered the patient. In general it seems to me, there has never been any effort on the plaintiff's lawyer side to consider where what the physician was doing fit into the practice of medicine but rather simply that 'something went wrong.' Regarding the rest of the iteration Obama, Dodd, Rangel, Emmanuel you probably know the information at least as well as I from the news but, if not, I would provide further details.
9.6.2009 1:08pm
neurodoc:
Edward A. Hoffman, huzzah! You are speaking truth to power with your account of how greatly and unjustly "tort reform" has stacked the decks against those who have been injured, sometimes very grievously, by the negligence of health care providers.
anotherpsychdoc: In general it seems to me, there has never been any effort on the plaintiff's lawyer side to consider where what the physician was doing fit into the practice of medicine but rather simply that 'something went wrong.'
Your experience is clearly a limited one, and probably always on the defendant's side. Plaintiff med mal attorneys who "never (make) any effort...to consider where what the physicians was doing dit into the practice of medicine but rather simply that 'something went wrong'" will be bankrupt after awhile.
9.6.2009 6:29pm
neurodoc:
Leo Marvin: On the other hand, have you ever known aside from a few liberals who wouldn't contemplate suicide as an alternative to 90 minutes of Mark Russell or The Capital Steps? Do you know anyone who can say George Soros' name without gagging who was remotely entertained by Rush Limbaugh's foray into satire?
I enjoy Mark Russell, though I think he is a pale imitation of the incomparable Tom Lehr, and the Capital Steps too, though it has been a while since I have seen either. Does that peg me politically? (It's been almost 20 years since I organized a surprise party on the occasion of my very conservative father's 70th birthday with the Capital Steps performing. As a gag gift, I gave my father a remaindered book by Jesse Jackson that I got Jesse to inscribe with his "Keep Hope Alive" message. His partner gave him a non-gag gift of an autographed picture of a counterpointal Jesse, Jesse Helms.)

I have no affection for George Soros or Rush Limbaugh. Though I don't know what sort of satiric effort Limbaugh may have directed at Soros, I doubt I would have found it funny, even if Limbaugh did manage to score some hits. I see Limbaugh's initimations that Soros and/or his family were Nazi collaborators as worse than baseless calumny, believing them to be "counterfactual" and repugnant.
Leo Marvin: there's no qualitative difference between Beethoven and Jessica Simpson
Are you blind?!
9.6.2009 6:46pm
Leo Marvin (mail):
neurodoc,

Does that peg me politically?

While you seem more Right than Left, I suspect "eclectic" would better describe your politics than either. Whether my syllogism does an adequate job of accounting for eclectics, I'll leave for others to decide. Anyway, in the next draft I'll put the disclaimers in bold and be less categorical with my examples.

If you really do enjoy Mark Russell and the Capital Steps, I'm adding you to the list of people I'd trust not to give up state secrets under torture.
9.7.2009 4:19pm
neurodoc:
Mark Russell, certainly enjoyable, though haven't heard him perform in a while. (Does one see him on local PBS stations?) Unfortunately, I can't listen to him without regretting that he isn't Tom Lehr, who was so much more trenchant (not as caustic as Mort Sahl, but easier to take and enjoy).

The Capitol Steps, saw them in their first years, when they were still part-timers moonlighting from jobs on the Hill and their effect was fresher than it later become. Are they still doing Lirty Dies, or did that go when Bill Strauss dropped out?

"eclectic" - yeah, I won't protest that label. I sometimes describe myself as a "militant centrist" because I tend to abreact to ideologues and ideological extremes. Does "Scoop Jackson" Democrat still have meaning? At times "neocon" feels OK, but at other times I lean toward "moderate Republican" (remember them), even "liberal" (but sure as hell not "progressive," a label which encompasses much that I am decidedly against. How about you, Leo Marvin, what political label do you accept for yourself?

[As for my willingness to give up state secrets under torture, please don't test me. (And though I live close to some very high-ranking people, I assure you I know nothing more secret than my own pin number.)]

As a CA lawyer, what do you think of Edward A. Hoffman's report of how it is with med mal after tort reform in CA?
9.7.2009 4:57pm
Ricardo (mail):
The industry has imposed a $250,000 cap on damages for pain and suffering, and has made sure this cap has not kept pace with inflation since it was imposed about 30 years ago. ... Most plaintiffs probably don't have $250,000 worth of pain and suffering, so this limit doesn't have much of an effect on their cases. It only targets those who have suffered the most serious injuries, thereby discouraging lawsuits only by those who have been most grievously harmed -- and it does this in order to protect the very practitioners who harmed them.

Other than failing to adjust the limits for inflation, the rest of this sounds good to me. Studies of medical malpractice cases in the U.S. show that there is no discernible relationship between the actual injuries suffered by someone as a result of medical negligence (as determined by neutral medical experts who review the case files) and the amount of money plaintiffs walk away with. So the $250,000 cap doesn't hurt people who actually have $250,000 worth of damages: it hurts those people who would otherwise be able to convince a jury to award them $250k. There is a big difference between these two.

As much as people (conservatives especially) like to rip on California, it seems me that they are doing the sensible thing here although one can quibble with the size of the damage cap or insist it be adjusted for inflation.
9.7.2009 10:48pm
neurodoc:
Ricardo: Studies of medical malpractice cases in the U.S. show that there is no discernible relationship between the actual injuries suffered by someone as a result of medical negligence (as determined by neutral medical experts who review the case files) and the amount of money plaintiffs walk away with.
Really, no relationship between the actual injuries suffered...and the amount of money plaintiffs walk away with? Where do we find those studies, so we can scrutinize them?
9.7.2009 11:54pm
Edward A. Hoffman (mail):
Ricardo wrote:
So the $250,000 cap doesn't hurt people who actually have $250,000 worth of damages: it hurts those people who would otherwise be able to convince a jury to award them $250k. There is a big difference between these two.
But what about people who actually have more than $250,000 in damages? Surely you would agree that a $250,000 cap hurts them, since it leaves them no chance at all of receiving fair compensation.

Ricardo also wrote:
Studies of medical malpractice cases in the U.S. show that there is no discernible relationship between the actual injuries suffered by someone as a result of medical negligence (as determined by neutral medical experts who review the case files) and the amount of money plaintiffs walk away with.
I share neurodoc's skepticism of your claim. It doesn't even make sense to say that "neutral medical experts" can assess a given patient's pain and suffering better than a jury can. After all, if you lose the ability to walk for the rest of your life, why would a doctor have a better idea than a plumber of how much compensation would be fair?

Moreover, I'm not sure just how "neutral" these experts could even be if they have a vested interest in reducing the size of malpractice damage awards. Since most "medical experts" are doctors and since most doctors (like the rest of us, of course) are eager to protect their own pocketbooks, it makes little sense to choose experts who are already lined up on one side of the debate and call them neutral.

Finally, if California's limits make so much sense, why should they apply only in med mal cases? Do we think juries are better at assessing the pain and suffering caused by, say, an assault and battery or a defective product than that caused by a doctor? Or could it be that doctors and their lobbyists just hold more sway over lawmakers?
9.8.2009 1:17am
Leo Marvin (mail):
neurodoc,

Normatively I'm pretty far left, but I believe in a lot of things I don't necessarily think would be helpful, cost effective or otherwise advisable in their pure form. So probably something like a liberal pragmatist would be right.

As for Mr. Hoffman's comments, I've only ever practiced transactional law, so most of what I know of that world comes from the news. All the doctors I know personally do seem put upon by their malpractice premiums and their need to practice defensive medicine. On the other hand, I don't know anyone who's ever received a malpractice award, while I know a number of people who have had bad treatment results that left them the worse for wear, and none of them sued. I'm not suggesting that's a representative microcosm, but more that it confirms my (possibly biased) perception that the sensational judgments we hear about are anything but typical themselves.

That said, I assume we're going to need every cost efficiency we can get, so I'd be open to some sort of tort reform of that sort, though not necessarily capped at those levels, and only provided that everyone else in the system takes a haircut too.
9.8.2009 8:23am
Nick B (mail):
So, how many of you who think the author is "unfunny" *and* think the author does not realize he's talking about destroying lawyers as a profession?
Nick
9.8.2009 1:40pm

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