Comments on: Real Tort Reform http://www.showmedaily.org/2010/01/real-tort-reform.html Advancing liberty with responsibility by promoting market solutions for Missouri public policy Fri, 10 Feb 2012 02:56:48 -0500 http://wordpress.org/?v=2.8.4 hourly 1 By: John Payne http://www.showmedaily.org/2010/01/real-tort-reform.html/comment-page-1#comment-5033 John Payne Tue, 19 Jan 2010 19:15:22 +0000 http://www.showmedaily.org/?p=12260#comment-5033 I agree that defensive medicine is a substantial drag on our medical system, but I think a loser pays tort system would address that problem just as well as caps on damages by eliminating many frivolous lawsuits. However, I doubt that a loser pays system would exclude people from the system. If a case has merit, an attorney could take it on contingency. For lawyers not to take thousands of good cases would be the equivalent of leaving money lying in the street. I agree that defensive medicine is a substantial drag on our medical system, but I think a loser pays tort system would address that problem just as well as caps on damages by eliminating many frivolous lawsuits. However, I doubt that a loser pays system would exclude people from the system. If a case has merit, an attorney could take it on contingency. For lawyers not to take thousands of good cases would be the equivalent of leaving money lying in the street.

]]> By: David Stokes http://www.showmedaily.org/2010/01/real-tort-reform.html/comment-page-1#comment-5004 David Stokes Fri, 15 Jan 2010 21:36:14 +0000 http://www.showmedaily.org/?p=12260#comment-5004 You are right about one thing - that some people here will disagree with you. You write, "Furthermore, if doctors have this special exemption, they have less economic incentive to be careful in their work." I would proposed that without the special exemption, doctors have more economic incentive to be way too careful in their work, by practicing defensive medicine, as in unnecessary tests designed less to treat the patient and more to defend against that one-in-ten-thousand risk of missing an obscure illness because you didn't order numerous tests to find every single one-in-ten-thousand risk. Defensive medicine has far more costs to taxpayers and the public than malpractice cases do. This study estimated it costs the people of Massachusetts $1.4 billion per year: http://advance.uconn.edu/2009/090223/09022302.htm I also think the idea that doctor's will be less careful because they have the "special protections" to be something that sounds fair in theory but has little basis in reality. The caps may be a "special protection" but the protections afforded one group here benefit all of us by having more doctors practicing in Missouri, with more competition, and by potentially reducing the costs associated with defensive medicine. I honestly question whether Barnes would continue its major investments in the city of St. Louis if the caps are removed. They have long been at a disadvantage anyway with city venue. Lower caps (it is important to note here that the 2005 reforms did not insitute caps in Missouri - they lowered the existing caps and clarified how many times they could apply per case, i.e. once. The trial bar was perfectly happy with the existence of caps under the old rules) might reduce the potential recovery of people with winning lawsuits, but a loser pays system is going to prevent access to the courts entirely for many people. "Loser pays" would exacerbate the venue problems already faced, with plaintiff lawyers refusing to file in all but the friendliest venues. What poor person could risk filing a lawsuit, no matter how worthy, if they lost the suit and ended up owing the defendents a quarter-million in attorney's fees? Courts are not markets. They are an institution of government that government itself has the right to control. People who don't like the reforms should elect people to office who will change those controls via the hard work of democracy. I have no problem with the legislature making reasonable increases to the caps as time goes on, when and if inflation ever returns, but it has every right to enforce caps. And I'll end by saying I am not a lawyer either, but I come from a family of attorneys and may have learned a thing or two by osmosis (for example, the importance of venue). You are right about one thing – that some people here will disagree with you. You write, “Furthermore, if doctors have this special exemption, they have less economic incentive to be careful in their work.”

I would proposed that without the special exemption, doctors have more economic incentive to be way too careful in their work, by practicing defensive medicine, as in unnecessary tests designed less to treat the patient and more to defend against that one-in-ten-thousand risk of missing an obscure illness because you didn’t order numerous tests to find every single one-in-ten-thousand risk. Defensive medicine has far more costs to taxpayers and the public than malpractice cases do. This study estimated it costs the people of Massachusetts $1.4 billion per year: http://advance.uconn.edu/2009/090223/09022302.htm

I also think the idea that doctor’s will be less careful because they have the “special protections” to be something that sounds fair in theory but has little basis in reality. The caps may be a “special protection” but the protections afforded one group here benefit all of us by having more doctors practicing in Missouri, with more competition, and by potentially reducing the costs associated with defensive medicine. I honestly question whether Barnes would continue its major investments in the city of St. Louis if the caps are removed. They have long been at a disadvantage anyway with city venue.

Lower caps (it is important to note here that the 2005 reforms did not insitute caps in Missouri – they lowered the existing caps and clarified how many times they could apply per case, i.e. once. The trial bar was perfectly happy with the existence of caps under the old rules) might reduce the potential recovery of people with winning lawsuits, but a loser pays system is going to prevent access to the courts entirely for many people. “Loser pays” would exacerbate the venue problems already faced, with plaintiff lawyers refusing to file in all but the friendliest venues. What poor person could risk filing a lawsuit, no matter how worthy, if they lost the suit and ended up owing the defendents a quarter-million in attorney’s fees?

Courts are not markets. They are an institution of government that government itself has the right to control. People who don’t like the reforms should elect people to office who will change those controls via the hard work of democracy.

I have no problem with the legislature making reasonable increases to the caps as time goes on, when and if inflation ever returns, but it has every right to enforce caps. And I’ll end by saying I am not a lawyer either, but I come from a family of attorneys and may have learned a thing or two by osmosis (for example, the importance of venue).

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