Posts tagged with: tort reform

In today’s Acton Commentary I explore how our hyper-regulated and increasingly statist healthcare system is chasing off good physicians.

A recent article in Forbes by Bruce Japsen provides some additional support for that argument:

Doctor and nurse vacancies are approaching nearly 20 percent at hospitals as these facilities prepare to be inundated by millions of patients who have the ability to pay for medical care thanks to the Affordable Care Act.

A survey by health care provider staffing firm AMN Healthcare shows the vacancy rate for physicians at hospitals near 18 percent in 2013 while the nurse vacancy rate is 17 percent. That vacancy rate is more than three times what it was just four years ago when vacancies for nurses were just 5.5 percent in 2009 while vacancies for doctors were 10.7 percent.

It’s not all doom and gloom. In an earlier Forbes piece, Scott Gottlieb, an internist and fellow at the American Enterprise Institute, argues that technological and organizational innovation will allow quality health care to be delivered using fewer physicians.

If allowed to proceed, these innovations may actually increase market freedom in one area. Physician organizations and medical schools often have replicated a pernicious feature of the traditional guild, namely, finding ways to limit the number of new physicians not purely as a quality control measure but, beyond this, as a way to ensure that existing physicians are in high demand. (more…)

Blog author: jwitt
posted by on Wednesday, September 2, 2009

[UPDATE BELOW] I discussed the creepy side of President Obama’s “science czar” here. But there are more creepy things in the cabinet. The Wall Street Journal reports that the president’s health policy adviser, Dr. Ezekiel Emanuel, wants to implement an Orwellian-sounding “complete lives system,” which “produces a priority curve on which individuals aged roughly 15 and 40 years get the most substantial chance, whereas the youngest and oldest people get chances that are attenuated.”

The WSJ piece continues:

Dr. Emanuel says that health reform will not be pain free, and that the usual recommendations for cutting medical spending (often urged by the president) are mere window dressing. As he wrote in the Feb. 27, 2008, issue of the Journal of the American Medical Association (JAMA): “Vague promises of savings from cutting waste, enhancing prevention and wellness, installing electronic medical records and improving quality of care are merely ‘lipstick’ cost control, more for show and public relations than for true change.”

True reform, he argues, must include redefining doctors’ ethical obligations. In the June 18, 2008, issue of JAMA, Dr. Emanuel blames the Hippocratic Oath for the “overuse” of medical care.

Now a freer healthcare market could take care of rationing much more simply, while providing increased incentives for healthcare providers to provide better value to choosey consumers. The problem is, a freer healthcare market wouldn’t route power through Washington.

And yes, it is more about power than about wanting to spread scarce healthcare services around more equally. Otherwise, the government would pursue something like healthcare tax credits for lower and middle income Americans. And they would pursue meaningful tort reform to curtail wasteful defensive medicine and the regressive transfer of wealth from consumers (who pay higher medical costs) to wealthy trial lawyers.

And no, I’m not proposing that these power-hungry politicians are monsters. Most are probably sincerely convinced that their increased power will help them pursue the greater good down the road. It’s just that others have been down this road before, and it isn’t pretty.

UPDATE: Longtime medical ethicist Wesley J. Smith has a nuanced look at Dr. Emanuel here. The post concludes:

[H]e explicitly advocates rationing based on what appears to be a quality of life measurement. From the piece [in the Hastings Center Report]:

This civic republican or deliberative democratic conception of the good provides both procedural and substantive insights for developing a just allocation of health care resources. Procedurally, it suggests the need for public forums to deliberate about which health services should be considered basic and should be socially guaranteed. Substantively, it suggests services that promote the continuation of the polity-those that ensure healthy future generations, ensure development of practical reasoning skills, and ensure full and active participation by citizens in public deliberations-are to be socially guaranteed as basic. Conversely, services provided to individuals who are irreversibly prevented from being or becoming participating citizens are not basic and should not be guaranteed. An obvious example is not guaranteeing health services to patients with dementia.

A lot of people are frightened that someone who thinks like Emanuel is at the center of an administration seeking to remake the entire health care system. Having read these two articles, I think there is very real cause for concern.

Blog author: jballor
posted by on Wednesday, August 26, 2009

In an Acton Commentary this week, I argue that a critical piece of any comprehensive and meaningful reform of the health care system must include malpractice litigation (tort) reform. Part of what makes this so urgent is that the litigious climate in which we live has eroded the doctor-patient relationship. In “Patients and Doctors: Partners not Adversaries,” I write that “patients are less inclined to trust doctors whom they believe are ordering tests and procedures out of a desire to protect their own economic interests. Patients in turn are much more apt to turn to legal remedies when they feel that doctors have not been forthcoming and trustworthy.”

Last week President Barack Obama spoke on a conference call to thousands of faith leaders from around the country to try and enlist them in his fight for health care reform. Highlights of the president’s remarks, as well as full audio of the proceedings, are available here.

I should note that I was not (at least intentionally) channeling Sarah Palin when composing this piece. But last week Shane Vander Hart (at the ever-worthy Caffeinated Thoughts) pointed out that the former Alaska governor wrote in a recent Facebook memo that “we cannot have health care reform without tort reform.” Of course my (and Gov. Palin’s) argument is not novel with either of us.

But what is novel is the particular concrete approach that I highlight in the commentary. The University of Michigan Health System has implemented policies that encourage doctors to be upfront and honest about the regret for procedures gone awry and admit when mistakes might have been made.

As David N. Goodman of the AP reports, “The willingness to admit mistakes goes well beyond decency and has proven a shrewd business strategy,” citing an article in the Journal of Health & Life Sciences Law, “A Better Approach to Medical Malpractice Claims? The University of Michigan Experience,” by Richard C. Boothman, Amy C. Blackwell, Darrell A. Campbell, Jr., Elaine Commiskey, and Susan Anderson (PDF). The article cites a case that “illustrates how an honest, principle-driven approach to claims is better for all those involved—the patient, the healthcare providers, the institution, future patients, and even the lawyers.”

For some basic facts on health care, visit the Health Insurance Costs page at the National Coalition on Health Care. And for more information about the widespread practice of defensive medicine, see the PDF report from the November 2008 study, “Investigation of Defensive Medicine in Massachusetts” by the Massachusetts Medical Society. For more Acton resources, check out the institute’s Health Care media page.

Update (5/21): The New York Daily News reports that “state lawmakers are trying to give the fat tax new life.”

Senate Democrats want to impose a penny excise tax on non-diet sodas to help fund a plan to provide property tax relief to homeowners. “It’s a small amount of money, as far as increasing the price of soda, and it would allow the governor and the state to have a new slogan for soda: ‘Have a coke, a rebate check and a smile,’” said state Sen. Jeff Klein (D-Bronx) who unveiled the plan yesterday.

On the Atlantic Magazine blog, Derek Thompson links Rev. Sirico’s article and offers praise for sin taxes:

The idea that taxes have no right to reflect government values is crazy (why else would we give legal and financial bonuses to marriage?). Cigarettes already face steep state taxes precisely because those states value a smoke-free environment. Carbon taxes are advocated on the principle that companies aren’t properly valuing the negative externality of pollution.

sin taxOriginal Post: Writing on The American, published by the American Enterprise Institute, Rev. Robert A. Sirico looks at how the “sin tax” has been creatively revived by those currently “remaking America” in Washington. The sin tax is an excise tax on those goods that elected officials deem morally suspect: tobacco, liquor, junk food, among other things. But Rev. Sirico says that the temptation to impose sin taxes is one that should be resisted for economic and moral reasons. From the article:

The elite media, liberal think tanks, and academic researchers are already building a case against Big Food for its scarlet sins: sweetened drinks, fatty snacks, alcoholic beverages. You know what’s coming next: a wave of punitive government regulation and scores of lawsuits aiming to shake down the nation’s vast food and beverage industry. It’s the same strategy developed for the assault on the tobacco industry—tax the bad stuff out of existence. Today, in New York City, the price of a pack of cigarettes now tops $9 (each pack now carries $5.26 in taxes), which makes the city one of the most expensive places in the country to smoke.

Never mind if you have freely chosen to smoke a cigarette or drink a cold Coke on a hot summer’s day and, mirabile dictu, you take responsibility for your actions. The New Puritans who are ready to dramatically expand the welfare state and limit personal freedoms claim to know what’s best for you.

The sin tax seems like a convenient ploy when the state is searching for new sources of revenue in fiscally tight times. A sin tax also appeals to some voters who view it as a way of discouraging consumption of certain objectionable products. Yet the temptation to impose sin taxes is one that should be resisted for economic and moral reasons. The consequences of the sin tax are often the very opposite of those intended by its designers. Rather than increasing revenue, the sin tax can reduce it. Rather than discouraging what are regarded as morally questionable behaviors, the sin tax can make them more appealing. Rather than reducing what are perceived to be internal costs of the sin, the sin tax can increase them and expand them to society as a whole.

Read “Hate the Sin, Tax the Sinner?” on The American.

Blog author: jballor
posted by on Tuesday, September 18, 2007

In an attempt to oppose legislative action on tort reform, Nebraska Democratic State Senator Ernie Chambers “filed a lawsuit against God in Douglas County Court.”

“The Constitution requires that the courthouse doors be open, so you cannot prohibit the filing of suits,” Chambers says. “Anyone can sue anyone they choose, even God.”

I don’t think it quite works that way. In order to have standing to bring a suit, you not only have to be affected, there has to be “a likelihood that the injury will be redressed by a favorable decision, which means that the prospect of obtaining relief from the injury as a result of a favorable ruling is not too speculative.”

Somehow I don’t think God is taking orders from the Douglas County Court. As he said in another (perhaps not so altogether different) context, “Who is this that darkens my counsel with words without knowledge?” and “Will the one who contends with the Almighty correct him? Let him who accuses God answer him!”

My immediate reaction to hearing the case and that it had to do with tort reform was that the guy must be providing an example of a completely idiotic and frivolous lawsuit in order to spur action on tort reform. I never thought he’d be opposing it! There’s likely to be a backlash to outlaw this sort of stunt and all kinds of other frivolous litigation.

Update: The Volokh Conspiracy has a link to a case brought against “Satan and his staff,” in which the case was dismissed for similar reasons: “the Court has serious doubts that the complaint reveals a cause of action upon which relief can be granted by the court. We question whether plaintiff may obtain personal jurisdiction over the defendant in this judicial district.”

…at least not yet.

Check out this disheartening AP story, “Judge: Cleaner owes me $65 million for pants; 2 years of litigation x 1 pair of trousers = headaches for family business.”

The US court system shouldn’t be a venue for the pursuit of a personal vendetta. This case clearly shows how lawsuits can be used to bring incredible expense and stress on the defendant, regardless of his or her guilt or culpability. And unless things change, like moving to a loser pays system, the plaintiff risks nothing.

All too often the real victims in these kinds of lawsuits are hardworking small business-owners, whose livelihood is threatened. And when small businesses suffer, the entire community suffers with them.

Is the neighborhood being made better off by Pearson’s lawsuit? Is Pearson protecting them from a business that engages in false advertising? If Pearson drives the Chungs back to Korea, the neighborhood will be made worse off, not better, and Pearson will have settled a petty grudge.

When business enterprise and successful entrepreneurship makes you the target of predatory lawsuits seeking only deep pockets, there’s something deeply wrong with the tort system.

In this monograph, Ronald Rychlak argues that the tort system needs to be reformed with a view toward the common good.

Let’s hope in this case Pearson doesn’t get off scot-free. It seems like that even in the absence of a formally-instituted loser pays system, the arbitrating authorities should have the power to dismiss Pearson’s case with extreme prejudice and require him to pay all the court costs and legal expenses for the defense.

Blog author: jballor
posted by on Tuesday, April 10, 2007

Last month the Pacific Research Institute released a report estimating that costs associated with the American tort system exceed $865 billion per year (HT). Check it out for a detailed breakdown and comparison of these costs with other sectors of the economy and government spending. (Here’s a WSJ op-ed from the authors of the report.)

ABC’s 20/20 had a segment last week on the largest lottery winner in history, Jack Whittaker of West Virginia, who won $315 million in 2002. It’s a sad story for many reasons, but I want to point out one aspect of Whittaker’s tale.

At the time of his jackpot, Whittaker owned a successful construction company that was “doing $16 million to $17 million worth of work.” According to the story, Whittaker “enjoyed years of success with few complaints, but less than a year after winning the lottery things began to change.”

“I’ve had over 400 legal claims made on me or one of my companies since I’ve won the lottery,” said Whittaker.

When asked why that might happen, Whittaker said it’s because “everybody wants something for nothing.”

Rob Dunlap, one of Whittaker’s many attorneys, said Whittaker has spent at least $3 million dollars fending off lawsuits.

Another recent development in tort news is the mainstream acceptance of animal law, which will likely be front and center in any class-action lawsuit resulting from the poisoning of thousands of pets via Menu Foods products. Are pets persons or property?

Amy A. Breyer, one of the only full-time Chicago-based attorneys who specializes in animal law, says that when animals are considered property, as they are in Illinois, they have no voice in the courts.

For more reading on the devolution of the American tort system, check out Trial by Fury: Restoring the Common Good in Tort Litigation, by Ronald J. Rychlak, associate dean for academic affairs at the University of Mississippi School of Law.

Michigan Lawsuit Abuse Watch, M-LAW, started a contest to find the wackiest warning labels on consumer products ten years ago, and they’ve just released this year’s list of winners (HT: Slashdot).

Topping the charts is the warning attached to a front-loading washing machine: “Do not put any person in this washer.” Other hits include:

  • “Never use a lit match or open flame to check fuel level.”

  • “Don’t try to dry your phone in a microwave oven.”

The contest is part of the group’s efforts to “give us a chance to tell the inside story of how our nation’s legal system has become so erratic that these types of labels are necessary,” said Bob Dorigo Jones, president of M-LAW.

In his book Give Me a Break, journalist John Stossel includes a chapter titled, “The Trouble with Lawyers,” and writes that these wacky labels are a form of “verbal pollution.” He says, “Lawsuits also disrupt the information flow that helps us protect ourselves. We ought to read labels.” But when we are overrun with inane labels of this kind, “people respond to it by ignoring labels we should read.”

Blog author: kschmiesing
posted by on Thursday, August 31, 2006

Tort reform has been on the political agenda for some time. Eric Helland and Alexander Tabarrok make a unique contribution to the debate in their new monograph, Judge and Jury: American Tort Law on Trial (Independent Institute).

The first lines are clever:

Recently each of us has successfully sued more than a half dozen large corporations. No, we are not outrageously rich plaintiffs’ lawyers or the attorney general of New York. In fact, neither of us even knew that we were a party to these suits until we received a letter telling us that a lawyer had sued on our behalf.

The authors examine a number of issues surrounding the tort debate: whether race and poverty influence jury decisions (they do); whether judges would be better arbiters of damage awards than juries (not as much as one might think); and whether regulating contingent fees would improve tort law (it wouldn’t).

What is uniquely compelling about this treatment is that the authors rely more on number crunching than anecdotal evidence to support their contentions. Their conclusions are cautious and reasonable.

What is missing from their account is the recognition that the excesses of tort litigation cannot be addressed by legal reform alone. There is a moral dimension to the problem: a failure to acknowledge and treat others as human persons and a consequent neglect of the demands of the common good. Interestingly, Judge and Jury gestures in that direction. The authors observe that most abuses in the current system occur when juries and judges are assessing claims affecting out-of-state parties—in other words, when the damages levied will affect people far removed from them (and whose personal dignity and rights can be more easily ignored).

For a full treatment of the moral dimension of the tort debate, see Ronald Rychlak’s Trial by Fury.

Blog author: jballor
posted by on Friday, March 17, 2006

A recent NBER working paper, “The Effects of Tort Reform on Medical Malpractice Insurers’ Ultimate Losses,” argues that “The long run effects of reforms are greater than insurers’ expected effects, as five year developed losses and ten year developed losses are below the initially reported incurred losses for those years following reform measures.”

A number of the specific changes in the history of tort law are discussed in Ronald Rychlak’s Trial by Fury: Restoring the Common Good in Tort Litigation, part of Acton’s Christian Social Thought Series.

Rychlak argues that in addition to the tangible and significant economic impact of current tort law, the system also “encourages litigation at the expense of forgiveness and understanding. It ignores the role that family members, friends, religious leaders, and others can play in bringing about reconciliation.”