Dragons, Tort Reform and Other Myths
Contributor
(866) 735-1102 Ext 710
I am not just picking on Jay Hancock at the Baltimore Sun and his comments about tort reform. Actually, Mr. Hancock’s comments, although containing the typical unsubstantiated statements that sound like fact, are actually sane in comparison to some of the pundits out there shouting for tort reform to “fix the civil lawsuit system”.
I think it was in George Orwell’s book, 1984, that politicians grasped the repeat-it-to-fact approach to things. This is where you get enough people to say the same thing over and over; the media latches on to the notion and repeats it; and it does not matter that no real substantial evidence to support the notion exists, people begin to spout the notion as if it is fact. That is exactly what has happened to tort reform.
So, let me use a column by Mr. Hancock to address some of the myths made to sound like fact.
“…doctors over-scan and over-treat patients to fend off lawsuits, costs billions of dollars a year.” I am not sure anyone can fairly assess whether claimed over treating is defensive medicine or simply good, cautious medicine. I am sure that no reliable basis exists for this claim except based upon the anecdotal evidence from the subjects of the alleged over treatment, doctors themselves. “
Trial lawyers bring dubious cases…juries deliver nonsensical verdicts.” Are their cases brought by attorneys that I “hear about” and I think, “what in the world was the lawyer thinking?” Yes, there are cases I “hear about” and conclude that very thing; but they are rare, once I learn the details of the case.
That is exactly the problem. People “hear about” cases, have no objective or informed information about the cases, and conclude they were “dubious”. I have been involved with jury trials for over 30 years and it is rare that a jury reaches a “nonsensical verdict”; if you actually knew about the case, heard the evidence that the jury received, and were present in the courtroom during the entire trial. Politicians and journalists do not inform themselves to this extent because it is not practical to sit through an entire three week trial. Instead, we “hear about” a trial and we are told “dubious and nonsensical” conclusions, because the politician or journalist could not possibly have reached a well informed conclusion.
Yes, I know, you are reading this and thinking: “McDonald’s coffee case”! Do us all a favor and really learn the details of that case, along with what the courts finally did with it before you decide it was “dubious” or the jury reached a “nonsensical” verdict. There was much more than sufficient evidence for the jury to conclude what they did in that case.
So, what are some of the facts about tort reform do we have? (In fairness, cited by Mr. Hancock)
"Tort reform as discussed in the United States would probably have very little impact," says Gerard Anderson, a professor at the Johns Hopkins Bloomberg School of Public Health. "The states that have enforced tort reform have about the same amount of litigation - and the awards are comparable - as states that don't."
A more drastic malpractice makeover would deliver substantial gains - but only once. New Zealand has a no-fault medical injury system in which lawsuits are essentially banned and experts decide how much to award victims. But even such a system, which nobody is talking about in the United States, would cut health care costs by maybe 7 percent at the most, Anderson said.
The nonpartisan Congressional Budget Office, as usual the best source for this kind of analysis, says malpractice costs make up only 2 percent of health care spending. "The evidence available to date does not make a strong case that restricting malpractice liability would have a significant effect," the CBO says.
Before draconian tort reform was passed in Florida, insurance executives testified, under oath, that tort reform would have no effect on insurance premiums; the executives did not believe a medical malpractice lawsuit crisis existed; and the executives did not believe frivolous lawsuits were really a problem, at least in medical malpractice. If these executives would benefit from tort reform, you must wonder why they would testify in this way. It is simply because the insurance industry and their minions of politicians have done such a great job of creating the mythical need for tort reform, they knew they could tell the truth and still have tort reform passed.
Please do us all a favor. Before all of you politicians decide to take away or severely limit my constitutional rights, please be sure you are doing it for reasons that are not dubious and base it on real, objective evidence. If you do, you will sensibly conclude that tort reform is a myth and practicing defensive medicine might simply be practicing careful medicine.