Herbert must listen to the trial lawyers


Category : Malpractice

Bernie used this article in his comment yesterday. As I read it, I was amazed how close to the trial lawyer’s talking points this article comes. Malpractice Myths

I will not quote from this article, as I might suffer nausea. The article shows no understanding of the crisis. He blames everything on bad medical care, and believes that malpractice suits will fix that. He is clueless, but probably represents the feelings of some in our society. We have a major educational problem. And the tort lawyers lobby disregards the facts, resorting instead to hyperbole.

This article is actually dangerous if anyone actually believes it.

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Comments (11)

I read the sane column in my paper yesterday, and I had the same reaction: This is a piece of junk.

Most newspaper columnits, particularly those writing for liberal papers as Herbert does, don’t have enough insights to indulge in penning absurdities like this one.

Herbert needs to stay in a city like Miami for sometime, talk to the doctors there about the situation, find out how many of them are “bare,” and hope that he doesn’t get sick in the course of educating himself better. But then I even doubt whether enlightening these liberal eggheads would make a dent in cracking their crusty anti-physician prejudices.

I have said before only something like a national crisis in health care precipitated by a liability problem spinning out of control would goad enough politicians to their senses until it is too late to repair the system. That would be bad for all Americans.

Do you mean that physician’s care isn’t a public utility, like running water and electricity? Writers like Herbert reflect a recent pattern of thinking that reflect a poverty of understanding and experience of the larger world, people so isolated by privilege and convenience that they have no understanding how extraordinarily fortunate they are to have at their disposal the expertise in medical care they have. Lots of people elsewhere wish they were so lucky.

We have been inculcated with the idea that medical care is a product, just like a car, for which the “customer” should have guaranteed expectations of “performance”. Price is irrelevant. And the liberal press and their trial-bar bedfellows provide written reassurance of this. Never mind that guaranteenig health or perfect results is like guaranteeing the weather.

It is possible to drive the costs of medical care to a point where it is no longer available. We are beginning to see this in many places in the US already. Will we live to regret letting this kind of thing happen? Probably. The problem then will be what happens next. You see, when you really do need that neurosurgeon right now, realizing that the system is broken won’t help you when that surgeon just isn’t there for you.

There is too much data out there now to ignore. When the trial bar trotted out this tired old tripe years ago, MAYBE you could charitably say it was their opinion. Now I say it’s a LIE, as in someone who knows better and chooses to ignore the truth.

Inflammatory perhaps, but accurate.

There are too many studies, the GAO study commissioned by Senator Durbin and suppressed when he saw results his paymasters in the trial bar would not like, the Florida study done by a number of prominent Florida lawyers, including Clinton HHS secretary Donna Shalala.

Now there are some very practical “natural experiments” done in states where tort reform was passed, then found unconstitutional and overturned, then reinstated; compared to states with long-term tort reform (California, Indiana), and states with no tort reform at all. You see the effect of what happens when you maintain strict tort reform continuously, what happens in the “control” groups with no tort reform, and what happens when you institute tort reform, take it away, and re-institute it.

Forgive me for intruding upon this bit of choir practice (as in: preaching to choirs), but I need to say something about RGL’s vacuous comments:

But then I even doubt whether enlightening these liberal eggheads would make a dent in cracking their crusty anti-physician prejudices.

Liberals are anti-physician? I would have thought that the conservatives, who support strict HMO second-guessing of physicians’ medical decisions, and who oppose doctors’ and patients’ efforts to ensure that HMOs are held accountable for their anti-physician, anti-patient profit-maximization schemes, needed their crusty anti-physician prejudices cracked first.

One problem for anyone advocating malpractice tort reform is that this issue has been co-opted by the right wing’s overall hostility to anyone other than large corporations having access to the courts.

Malpractice reformers would enjoy more strategic success if they stopped trying to sound like Rush Limbaugh, and spent more time trying to persuade everyone that doctors are really on the side of patients, and not just out for themselves.

Tort reform and overturning ERISA (the evil HMO thing) are two very separate issues.

Here’s another link on fixing the tort system, from HHS:


Frankly, I was very excited by the Herbert article. He says that malpractice insurance companies are doing very well. I was sued two years ago, and my company (PHICO) declared bankruptcy. The state of Texas has an emergency fund that only covers me for $300,000; therefore, a judgement against me over that amount will have to be paid out of my personal assets.

Unfortunately, many other insurance companies have also gone out of business throughout the country. But now a columnist in the most prestigious newspaper in the United States tells me that really, the compainies are “doing well.”

Oh happy day!! He must be telling the truth. So I guess it’s only a matter of time before PHICO (and, obviously, all the others) will be back in business. Isn’t this great news!!

I, for one, could not be more ecstatic. Thank you Bob Herbert!! Thank you!

I’m looking forward to your next column – “When Pigs Fly”

Herbert on med-mal, cont’d
Martin Grace of Georgia State provides more details (series of posts begins Jun. 21) to back up one of the points Jim makes below, namely “that the medmal insurance market is owned to a major extent by the doctors though…

The article shows no understanding of the crisis. He blames everything on bad medical care, and believes that malpractice suits will fix that.

Rather, I think he says that reducing preventable medical error is the real solution to the malpractice problem. This is a “win-win” solution, as opposed the the “win-lose” solution of restricting the ability of aggrieved patients to collect damages.

The simple (simplistic) equation is malpractice costs equals cost of injury times fraction of patients who collect times overage. Overage is the insurance companys’ and lawyers’ cost. You can try to control the third factor but I doubt you will have much success constraining it. It would be unethical to try to manipulate the second factor. Why not, as Bob Herbert suggests, put tour effort on the first factor?

I’m so sick and tired of this. There is no human enterprise that does as much to prevent error as does medicine. Don’t even start with the aviation industry. The day I’m allowed to permanently retire the aging “airplanes” I see in my office can we make a comparison with the two endeavors. The day I’m allowed to mandate preventive maintenance on my patients, prohibit self-destructive practices, maybe then we can compare medical error with pilot error.

Oh, and when you are injured in an air crash, your damages are limited. Read your airline ticket. The airlines had their own version of “tort reform” decades ago. If even one airliner crashed, if the passengers individually could sue for the millions they can get in medical errors, even one crash could bankrupt the airline.

The 40 thousand or 50 thousand or 98 thousand deaths a year caused by medical error is based on the JUNK SCIENCE paper called “To Err is Human” from the “prestigious” Institute of Medicine. They took, what was it, about 200 deaths in Boston from a couple decades ago, looked for ANY medical error during the care and made the leap of faith that the error CAUSED the death (dying cancer patient, doc gives two tylenol’s instead of one, that error caused the death) then extrapolates that to the rest of the country.

The IOM study is politically motivated garbage. The number of deaths caused by medical error is not zero but an order of magnitude less than the tens of thousands mentioned.

No one wants to reduce medical error more than physicians. But if we don’t get tort reform, there will be zero medical error because there will be zero medicine practiced.

Why not direct our efforts on TORT REFORM, which has been PROVEN, over and over again, to reduce the cost of malpractice insurance, while allowing injured patients compensation for their injury?

“Reducing preventable medical error” has little impact. As the Harvard study showed, 97% of negligence is never brought to attorneys’ attention while in 80% of the cases where suits are filed there was no damage or negligence whatsoever. How in the world would “reducing preventable medical error” help? In fact, trial lawyers cast aside the vast majority of legitimate malpractice to pursue cases that can be tear-jerkers and produce absurdly large verdits, such as those in the CP cases that are based entirely on junk science.

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