Obama To Cave On Tort Reform — Adding Provisions to Health Bill That Could Kill 4,800 a Year

In yet another morphing of George Bush and Barack Obama, the Administration has indicated that it will include “tort reform” in the new and smaller health care bill — provisions that the CBO has said could cost 4,800 lives a year. While an estimated roughly 100,000 people die each year from malpractice, the Administration is about to make it more difficult to sue doctors and hospitals.

What is particularly ironic is that Republicans have been objecting that the health care plan will lower the quality if health care, but they are moving to make it more difficult to sue over such malpractice.

The Congressional Budget Office says that the reforms will save $54 billion over 10 years, but it also notes that it could cost thousands of lives. Moreover, $54 billion over 10 years is not a lot of money in the context of $2.5 trillion we spend each year on health care, as Dick Durbin has noted.

The Democrats clearly want to pass anything that can be called health care reform at any cost, even if it means embracing such canards as these tort reform proposals. While I have supported some tort reforms in the past, we are experiencing a high level of malpractice in this country that is only fueled by caps on damages and other limits on liability. I have long opposed caps on liability as in this column, here.

Tort reform is a bit of a misnomer since reform implies a change for the better. For victims, it can be more like malpractice protection.

For the full story, click here.

108 thoughts on “Obama To Cave On Tort Reform — Adding Provisions to Health Bill That Could Kill 4,800 a Year”

  1. Duh:

    I do agree that more aggressive oversight by the Bar on repeat ethical offenders is warranted but here in Virginia the Bar takes a pro-active role in disciplining lawyers. In addition, the Client Protection Fund is designed to provide compensation for client losses, so I think the system works about as well as it can. You should recall that the lawyers are not totally self-policing since an arm of the State, the State Supreme Court, holds ultimate control over lawyer discipline.

  2. Mespo,

    Self-policing never has and never will work. Only professional arrogance permits a member of that profession to consider it to work.

    Some years back I filed a complaint against an attorney who made false statements of material fact to the court. I provided proof of my claim. I provided the relevant Rule of Professional Conduct. You know what the self-policing authority said? They told me that was for a judge to determine and said that I should contact an attorney. That’s the way it works. Ethics violations are rarely addressed.

    Here in Missouri we have a former Congressman Kenny Hulshof (R). In 2009 a judge declared that he lied to the jury in order to get a guy sent to prison. A judge determined that he lied to the jury and you know what kind of disciplinary action was taken? Not a damn thing.

    When it comes to judges it’s even worse. In 1992 three Bar Associations gave a Kansas City judge poor reviews. One of those was the statewide subcommittee of the Missouri Supreme Court known as the Missouri Bar Association. The voters listened and chose not to retain the judge. Just 4 years later this dethroned judge applied with the Missouri Supreme Court to be a “senior judge”. The court accepted his application and placed him on the bench in 9 other counties. The judge now had the same power, but being a senior judge, the voters could not remove him. Only the appointing authority could do that. No one in these other counties knew a damn thing about this judge. Who should have had to pay for the appeals from this identified bad judge?

    If you need more horror stories I can provide them. It may not be the same where you’re from, but I doubt it.

    Need I repeat that self-policing doesn’t work?

  3. Although I do not handle med mal cases, I have practiced for 37 years and have tried many cases before juries in the areas of breach of contract, breach of fiduciary obligations, violation of restrictive covenants, fraud and misrepresentation, civil theft, corporate espionage, construction claims and other business and commercial disputes. Here’s what I know:
    1. Historically lawyers earned more than doctors on average. Average physician income surpassed average lawyer income in the early ’30s. It really doesn’t make any difference to me who makes more than whom. Both are stressful professions and there is a huge earnings disparity among members of each profession. The perception that lawyers earn huge amounts of money comes from the publicity given to revenues in the mega firms (and we know what’s happened to those folks over the past two years) and to a small number of prominent PI and criminal defense lawyers. But the average lawyer is a sole practitioner who represents individuals and small businesses, struggles to meet overhead, performs a great deal of unpublicized work for free or at greatly reduced rates and lives a decidedly middle-class life. Nothing wrong with that, but that’s the way it is.
    2. Juries are generally conservative. Studies of verdicts through the years reflect a consistent pattern of relatively modest awards, and that is certainly my experience. In the rare case of a truly “runaway” jury, remittiturs (a court ordered reduction of the verdict) or new trials are routinely ordered by the trial judge or by an appellate tribunal. Juries are seldom permitted to award punitive damages, and the amounts of such awards are small unless the actions of the defendant are truly egregious. Perceptions here are also skewered because only large verdicts are publicized.
    3. I know from my colleagues who handle medical malpractice that a majority of those cases are turned down, either because they are not perceived to have merit, have not resulted in any permanent or significant damages or present insurmountable problems of proof. Mespo’s statistical data on medical negligence is certainly consistent with what I have read on the issue. An experienced malpractice attorney will not file “frivolous” suits, because they are notoriously expensive to prosecute and a majority of those cases which actually go to trial result in a defense verdict.
    4. The claims (first raised by insurance companies) that the tort system is out of control and that trial lawyers are to blame are simply nonsense. Frivolous lawsuits do not produce fees and subject lawyer and client alike to serious sanctions, which courts are not reluctant to impose. What insurance companies will not say, but what they really mean, is that they don’t trust the intelligence or integrity of juries who, after all, make the decisions. In all my years of practice I have never been permitted to enter a jury room and dictate what the panel is to write down on the verdict form.

  4. “Lawyers need to be subjected to government declarations about fees and have an independent board of laymen assess what is and is not good legal advice.”


    There is a lot of validity in most of your points, but laymen boards assessing lawyers is about as good as laymen boards assessing astro-physicists or nuclear engineers — they are still dependent on experts to explain the issues and the standard of care. It’s a moot point anyway since we already have laymen assessment boards; we call them juries.

  5. Mespo:

    You raise some interesting points. May I comment as one who has seen quite a good deal of the medical profession as a patient and also as the father of child with CF. We have been to the hospital multiple times (at least 40 with 4-5 major surgeries for our daughter) and have probably more knowledge of and up close observation of the profession than most average people.

    1. Doctors are insulated by the hospital, not in the legal sense but in the social sense. they are quite restricted in their social interactions and I think quite frankly somewhat naive about the world.

    2. They are not as smart as they think they are, they get fed that bullshit about being the best and brightest in medical school. I have met only about 6 doctors in the last 20 years that I would consider of exceptional intelligence. thankfully they are the ones that have helped us. For the most part the other doctors are bright but in no way are they infallible and they seem to think as a doctor they are somehow superior to the rest of us. The really smart ones are not like that (at least the ones I have met).

    3. Doctors are only human and the best make mistakes. We watched a resident kill one of our friend’s children because of a mistake that a 6th grader would not have made, he misread a dosage for a laxative. As a patient and patient advocate you must question every thing they do, if something doesn’t seem right it might not be. If you don’t like the answer then go ask someone else. Some people think doctors are gods, they are not. Part of the problem is doctors like to perpetuate that societal myth.

    4. not all make a lot of money, the specialists do but the primary care docs do not. Not all are the greedy pricks you portray and they get roundly screwed by both insurance companies and the government. They rarely if ever get fully compensated for their time and services and they have huge overhead what with office staff and malpractice insurance fees. For example our last visit to a specialist should have cost about $500.00, it was an hours time and a couple of tests given at the office. The doc was reimbursed $150.00 and we paid $25 out of pocket.
    How would you like to bill a client and only get 1/3 of what they owe you?

    5. they go to school for 4+4 and then internship and residency, they don’t start making money until they are well into their 30’s. A good lawyer can make $100k right out of law school along with other percs. Doctors get a small salary and a bunk at the hospital for the first 5 years out of school.

    6. they make life and death decisions in very stressful situations, lawyers have the luxury of hindsight and time to analyze all the data. If I could just look at someones mistakes from that vantage point and pronounce judgement from my Ivory Tower, I might pat myself on the back and think what a jolly good fellow I was.

    As a final parting thought, I think we need government run legal service to go with our government run health care. Lawyers are way to expensive and the average person cant afford them. Lawyers need to be subjected to government declarations about fees and have an independent board of laymen assess what is and is not good legal advice. Better yet we need paralegals pronouncing judgement on their outcomes and setting maximum and minimum fees for services without regard to market considerations.

  6. I laughed out loud when I saw a commercial for a local law firm a couple of weeks ago.

    The guy said,”We will come to your hospital room.”

    All I can think of with that congressman from New York is when it comes time to vote it’s either:

    Yes Massa


    No Massa

  7. puzzling–

    It was the repeal of the Glass-Steagall Act that led to some of the abuses that took place on Wall Street. Maybe a little more government regulation of the criminals on Wall Street would have helped us avoid the near collapse of our economy.

    I didn’t listen to the entire video. From what I heard, it sounded like an article I had read many months ago that was written by Matt Taibbi for Rolling Stone magazine.

    I’m not exactly sure what you meant when you said the following: “It is government that creates these banking syndicates, not a lack of government.”

  8. Elaine M,

    It is government that creates these banking syndicates, not a lack of government.

    Byron is exactly right. This has nothing to do with capitalism. This is a criminal gang with members both in and out of government, using all the power and legitimacy of the US federal government to steal:


  9. Duh:

    While I appreciate your point of view, I wonder on what basis do you conclude that, of the sample of physicians and lawyers you have “known,” the physicians seem more ethical. Ethical crises rarely arise in public but rather in the quiet decision making process behind closed doors. I know of no attorney, even the defense bar in medical malpractice cases, who tells their clients to lie in a deposition. They don’t give such advice, of course, because they would be disbarred for complicity in perjury. Alas it happens all the time. I wonder whose ethics is suspect then. When is the last time you heard of a physician losing his license for lying or encouraging others to do so? I’ll take our ethics and our self-policing under the authority of the courts.

  10. mkirshmd:

    “I’ve been in practice 20 yrs and I have rarely confronted medical incompetence directly.”


    Then perhaps you will listen to one who has seen it over and over again from breathtaking misdiagnoses to surgical fiascoes to drug and alcohol abuse affecting clinical judgments. There is a reason why we rely on national peer reviewed studies instead of anecdotal evidence from Cleveland. Here’s some more light shown directly on your profession by your profession:

    “The 1999 Institute of Medicine Report concluded that from 44,000 to 98,000 people die annually due to errors in inpatient hospital treatment. Hundreds of articles on medical errors have cited the Institute of Medicine Report. According to Dr. Lucien Leape, lead the author of the Harvard study, the number of deaths from medical errors in hospitals account for the equivalent to the death toll from three jumbo jet crashes every two days. Public Health Reports , 1999; 114: 302-317 July / August, 1999.

    One in every 10 patients admitted to a hospital is the victim of at least one mistake. National Public Radio (NPR) November 21, 2000,(Audio)

    Only 1.53 percent of patients who were harmed by medical treatment filed malpractice claims. N Engl J Med 1989 Aug 17; 321(7):480-4 Five years after I.O.M. report, medical errors still claiming many lives – U.S.A. today (archived)”

    You’re the scientist here, and as such you are compelled to analyze the evidence regardless of your own bias. How would you diagnose this situation in light of these facts?

    And by the way, if you consider me hostile, maybe you’ll understand that my sympathy lies with the families of the 44000 to 98000 ANNUAL victims and not the sniveling lamentations of the perpetrators of the negligence, whose only goal it seems is to be freed from the same accountability for actions the rest of us weather every day.

  11. Quote from the Journal

    “Claims that lack evidence of error are not uncommon, but most are denied compensation.The vast majority of expenditures go toward litigation over errors and payment of them. The overhead costs of malpractice litigation are exorbitant.”

    Mespo’s interpretation “What this tells most folks is that the system works and you guys are paying your lawyers and experts way too much to the detriment of real victims who suffer the consequences of preventable medical errors.”

    I read the same quote that you just did and arrived at a completely different conclusion. I read it to mean that it is not uncommon for claims to be filed even though they lack supporting evidence. The majority is spent on litigations of errors and payment of those errors. Meaning it costs a lot to litigate and the awards are high. If the quote from the journal didn’t include “payment of them” (meaning errors), I would agree with your statement.

    I know many doctors and many lawyers. I find the medical profession (doctors) as a whole to be more ethical. I know some very ethical attorneys. I just know more unethical attorneys than I do unethical physicians. When there is a cover-up from a medical error, the silence is usually directed by the hospital attorney giving them legal advice.

    Lawyers don’t make a living by suing poor people. They make a living by suing doctors, drug companies, and corporations. (I’m talking more about trial attorneys) It’s only natural that lawyers will not like doctors, drug companies, and corporations. It’s just not good to fall in love with the Thanksgiving Turkey. 🙂 I have both doctors and lawyers in my family. I’m just a guy on the outside looking in.

  12. @Mespo, with respect your hostility persists. I’ve been in practice 20 yrs and I have rarely confronted medical incompetence directly. Sure, I’ve seen (and made) mistakes and witnessed medical judgements that may have differed from mine. But your narrative suggests that the medical profession is a reckless and dangerous juggernaut, which conflicts with my experience, and that of my colleagues.

    Millionaires? Perhaps, I should move to NY where I can become rich, rather than stay in Cleveland where small practices like mine are being squeezed by corporate medical giants. Good luck trying to see their tax returns.

  13. No hostility doc, just years of dealing with duplicitous medical providers and their lawyers who will employ any means necessary to obfuscate their wrongdoing to the detriment of their patients. You may have been wrongfully included but we know from the medical profession’s own studies that the reason victims don’t get compensation is the profession hides their errors. Let me quote from just one in the New England Journal of Medicine and state its conclusions:

    “Claims that lack evidence of error are not uncommon, but most are denied compensation.The vast majority of expenditures go toward litigation over errors and payment of them. The overhead costs of malpractice litigation are exorbitant.”

    What this tells most folks is that the system works and you guys are paying your lawyers and experts way too much to the detriment of real victims who suffer the consequences of preventable medical errors.

    Read more and spare me the poor, poor pitiful millionaire routine. Remember, I do get to see the tax returns of the docs we sue and the ones of the experts you guys hire to invent medicine to protect the profession.

    Here’s that study:


    A similar study found the following:

    1. There is a staggering crisis in health care quality in New York State;
    2. The incidence of negligence is shocking;
    3. Bad medical care is found more frequently at hospitals with a greater proportion of minority patients;
    4. Patients over the age of 65 were found more likely to receive substandard care;
    5. Many people never knew that they or their family members had been subjected to bad or incompetent medical services; and
    6. Seriously injured patients gain almost nothing by filing a complaint with the Department of Health, which rarely responds or takes effective action

    The real crisis, doc, is that most folks have no idea they’ve been malpracticed upon and many of your colleagues do their darnedest to make sure they never find out.

    Bottom line according to Harvard, “… the number of meritorious claims that did not get paid was actually larger than the group of meritless claims that were paid.”

    As my friend Bob, Esq likes to say, “stay in your own movie.”

  14. Byron–

    “Let me say one thing though, the people that took bailouts for the most part are not really capitalists.”

    They were capitalists until they screwed up–and then they came crying to the government to bail them out.

    I do believe there are honest businessmen. My husband is one of them. Unfortunately, there are too many people in business who are not…people who only care about what is good for them. They don’t give a damn about other people or their country.

  15. @marnie and @mespo

    Regarding: “most patients who deserve compensation from negligence are never captured by the system.”
    This means that the vast majority of patients who have been victims of medical negligence are not discovered oor compensated for their injuries. The current system only reaches a fraction of patients who deserve legal redress. If we physicians performed so poorly, we’d be sued.

    Mespo seems hostile to the medical profession in general, so I’m skeptical there is room for dialogue. I will say that my insurance companies never paid a dime for me. I was deemed innocent in every case and dismissed from my cases at various stages in the process. This is not an example of the system working; it demonstrates that innocent physicians are turned into defendants too easily.


  16. Elaine:

    I agree, Bush was a scum bag and so was Hank Paulson. They should have let them fail and have a downturn for a year or maybe a little more. Had they done it we would probably be out of it and getting back up on our feet by now. This didn’t work in 1930 and it wont work now.

    Let me say one thing though, the people that took bailouts for the most part are not really capitalists. They are the ones that need government to help them compete, they are philosophically Fascists. There are many good people who run corporations that were as opposed to that bail out as you and I were/are.

  17. Byron–

    I don’t have a lot of faith in our government–but I trust big corporations, banks, and Wall Street even less.

    You said: “We are fast running out of other peoples money, look at Greece, you don’t think we are on that road?”

    It was good old Goldman Sachs that helped Greece hide its debt so it could be accepted into the EU.

    I do think we are on that road. Unfortunately, our government bailed out the rich–and cast the middle and working classes adrift.

  18. Elaine:

    thousands of people supposedly die from doctor incompetence each year.

    I don’t think the cure is a government Rx. There needs to be a private sector solution. We mandate car insurance coverage but at least the private sector takes care of it.

    I may be so full of the brown stuff but I don’t trust government to do much of anything right. They have no motive, as Harvey McKay says “Beware the naked man who is willing to give you his shirt”. Well actually they do have a motive-power.

    I don’t mind helping people but I heard a statistic today that said about 40% of all people in the US are receiving entitlements. How can we sustain that? And why should we? I care about my friends and family, I don’t care about some skinhead living in Idaho sucking at the public teat supported by my work. It isn’t fair and it isn’t right.

    We are fast running out of other peoples money, look at Greece, you don’t think we are on that road?

  19. Byron–

    There are bad/incompetent doctors in the world–like the one who removed a child’s bladder by mistake. I’ve read stories about doctors removing the wrong, foot, leg, kidney of patients. Should there be caps placed on the amount victims of such botched operations can receive?

    My mother has Medicare and the Blue Cross Medex Supplement coverage. She has had excellent care.

    I have good coverage under Blue Cross/Blue Shield too. Unfortunately, it carves a huge hunk out of my pension check each month. There’s a possibilty I could lose coverage under my current plan because the town where I worked is looking to save money on health insurance premiums. Many retired teachers don’t qualify for Medicare.

    If you check out where our country stands on things like infant mortality rates the US doesn’t look so good. Millions of Americans have no health insurance because they can’t afford it. Many thousands die each year because of this. Many of these people visit emergency rooms when they have serious problems. Guess who pays for that? We really do need healthcare reform in this country.

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