As much as many of us have ranted against Big Pharma’s marketing practices, I prefer to view this matter from another perspective, which is that lay jurors ought not to be trusted in making judgments on a subject with complex issues they are not equipped to understand. This is a perfect example of the need for special physician-juries, a subject extensively debated in previous postings on this website.

Dr. Elizabeth Whelan, president of the American Council on Science and Health, poses some cogent questions in the aftermath of this outrageous verdict: “If pharmaceutical companies are held liable for unpredicted consequences of pharmaceuticals that receive FDA blessing, what is the incentive for the companies to produce new drugs? If liability costs wipe out the company’s potential to recoup millions of dollars (in some cases, over a billion) spent in researching, developing and testing a drug, why would a company even bother to pursure new pharmaceutical innovations?”

She offers this solution: “The time has come to consider providing legal immunity to pharmaceutical companies who are granted FDA approval. Otherwise, we are holding them accountable and responsible for effects that (a) may not actually be validated or (b) were not known at the time the drug was approved.”

Whether we agree or not, she has valid points we should seriously consider.

CuriousJD –

Why do you believe that people who have bills that have not been paid are frivolous in attempting to collect?

Curious JD, as a lawyer and soon-to-be doc, I would caution you for assuming that physicians have jumped into bed with insurance companies … or drug companies for that matter.

In fact, most physicians I know RESENT being told what they can charge/collect by insurance compaines … and for good reason too. To illustrate, please name another PROFESSION that is told what they may either charge and/or collect. Architects? Engineers? Accountants? Pilots? Heck, even most plaintiff’s lawyers charge hourly fees for most cases. So how would you like being told how much you could charge and/or collect for every service you render every single day?

In fact, the lawsuit example you provide pits those very two groups — i.e., docs and insurance compaines — against each other. That’s an awfully odd way to assert that the two are somehow “in bed” with each other.

And you know as well as I — if you have done any litigation — that pleadings confirm nothing. I’ll go so far as to say that it is fairly common practice to deny everything you can’t perfectly ascertain … and then sort it out later. I wager you know that so I don’t think your example is completely apropos.

AND, one thing that makes physicians’ assessments far different than yours — I wager — and most definitely the lay juror — is the fact that I know about pharmacology, have studied it ad nauseum, I have meticulously review what makes studies “good” or “bad,” I have read the Vioxx studies and critiqued them and discussed them before and with other persons qualified to do so, I have viewed Vioxx commercials and know their claims. In short, I have read the data and can understand it for myself with little to no outside input and can then make my own conclusions.

How many lay people can you say that for on the jury? What a friggin’ gamble!!! You know that too.

No, I think there is a HUGE difference, Curious.

In the end, I thoroughly fail to see the hypocrisy you are so quick to point out.

Curious JD,

Not real sure about the punitive damages against docs. I have definitely seen some cases where they were imposed.

Regardless, your reminder of who we are “in bed with” is unnecessary. Most docs I know absolutely despise both their own carriers as well as their reimbursers. Trust me, we are all very well aware they do not have our best interests at heart.

As far as the mental abilities of most jurors, you obviously have not seen the jurors I have. While I have little doubt that most attorneys and doctors, engineers, pharmacists, and architects could understand most of what was explained to them, a MUCH smaller percentage of those who make the final jury qualify for this inclusion. You know that.

Moreover — your insipid little word games aside — you make my point precisely. What I charge and what I collect are NOT set by the market. Yours and every other profession is set by the market. I am glad you see the obvious difference, which was — after all — my point.

And no, I don’t just mean the government. Included in that statement was insurance companies. My clients — as it were — rarely pay a substantial portion of their bills.

And yes, most plaintiff lawyers DO charge by the hour. There may be a couple of caveats to that general rule, but THAT IS MOST CERTAINLY THE GENERAL RULE.

And to be lectured by a lawyer about hypocrisy, more specifically, limiting redress against his or her chosen profession. PLEASE!!!

Who INVENTED the rules that govern malpractice actions against lawyers? Not legislatures.

No doubt, I have seen some docs who deserve to get sued. Much more often, however, I have seen physicians sued because they would not cave into the blackmail of patients who want more “pain” medicine. I really don’t fit into any neat little category on this [malpractice] issue. That having been said, however …

Physicians must fight tooth and nail to democratically enact legislative reforms while docs are driven from states and localities by bottom-feeding trial lawyers.

At the same time, judges and lawyers cover each others’ backs, legislating from the bench, making rules and “case-law” that state in order to prevail against a lawyer for malpratice, a plaintiff must first show he/she would have been successful on the underlying claim. How convenient.

To be lectured about hypocrisy by a lawyer over the “desire to limit others ability to seek redress in the court’s [sic],” borders on the ridiculous.

When “y’all” come up with something equitable like that for the other professions, then you can lecture me about my own ALLEGED hypocrisy. (I threw that “alleged” in there for old times sake.)

Curious, plaintiffs’ lawyers most certainly do charge hourly fees. One caveat is the larger firms that are well established and take ONLY good cases. They screen their cases meticulously. BUT even then, I know several of the larger plaintiff firms in the state, and they too take billable cases. You also have the occasional promising case for the local “hang-out-your-shingle” lawyer, whose mainstay is domestic relations, testamentary work, contracts, and/or real estate — all billable hours or set fee. I also know that they take personal injury cases for fees too. That’s just the bottom line.

And no, the market is not the insurers. Do you honestly think that because the demand is high for Dr. X that a patient’s insurance company will pay him a higher rate? How naive. Economics 101 simply does not apply to today’s health care market.

And the insurer is NOT my customer. The patient is. Rather, the patient is the customer of the insurance company. I am pleased to see that we do agree on the issue of this “break” being a major problem with current health care.

No, the “whole ‘docs closing up shop because of lawyers’ thing” has NOT been discredited. If you would like to continue this conversation, I feel most confident that migratory patterns of physicians will reveal a patter of ingress and egress consistent with states that are not friendly to their interests. We see the same thing with businesses and business friendly state and local environments. Why would you NOT expect to see the same with physicians? That just makes sense.

As far as lawyers inventing standards to help them, just how do you prove that your original cause of action WOULD have succeeded? I trust that illustrates my point sufficiently. If not, we can continue.

“Curious, plaintiffs’ lawyers most certainly do charge hourly fees. One caveat is the larger firms that are well established and take ONLY good cases.”

Again, that’s just wrong unless we’re discussing business cases. What’s even sillier is the notion that the larger the firm, the better the lawyer. The only lawyer on the Forbes 400, the guy who won the $10 billion verdict against Texaco on behalf of Pennzoil, was in a 3 or 4 man firm and took the case on a contingency fee.

I would guess that if you, like most people, were in a serious car wreck today which rendered you disabled for at least six months, that you could simply not afford to pay the hourly rates of an attorney, plus thousands in expert witness fees, plus the depositions and various other court costs. You’d be worried about making your mortgage, car payment, and eating while you weren’t working. Now imagine having that happen to you if you made $10/hour. The insurers claim that trying a med mal case costs up to $100K. How many people do you think can afford that out of pocket.

Again, we all sometimes do take billable personal injury cases. I offer it to all my clients. But few have the financial ability to take the offer.

How do you prove your original cause of action would have succeeded in a legal malpractice case? By having your attorney lay out the facts and apply the law to them through testimony and evidence, expert and otherwise. No different than any other professional malpractice case. How do you prove that your architect designed a faulty home?

As for physicians leaving, in nearly every state where that cry is raised, a net gain of physicians has been shown. I have no doubt you guys are scared, it’s just that you’ve picked the wrong scapegoat. I have no doubt as to what physicians’ perception is – it’s just that their perception does not equal reality. Even states with caps lost insurers in the last economic downturn, and even states with caps saw their rates skyrocket. The fact that the AMA scared you into believing caps make a difference doesn’t make the claim true.

To WL, your grandmother illustrates what happens when you cap non-economic damages. Because she has no economic damages, and given the uphill battle in every med mal case, it becomes very difficult to take a case with a non wage earning plaintiff.

As for your claim that you’re not in bed with the insurers, maybe you don’t think you are. But as long as you’re backing caps on damages and other forms as tort reform, that’s exactly who you’re benefiting.

1. (FYI, my paragraph numbers do not correspond to your) My statement is simply that most cases representing personal injury victims are taken on a contingency basis – I’d say in excess of 90%. It’s that simple. Now, if the firm does other things, as all but the biggest names do, sure they charge hourly. I handle domestic, real estate, commercial litigation etc. and I charge flat fees and hourly. But on almost all my personal injury cases (I can only think of one I haven’t) I do it on a contingency fee. Clearly, though, we agree on this one.

2. You did state: “One caveat is the larger firms that are well established and take ONLY good cases.” Maybe you didn’t mean to imply that the larger the firm the better, but that was certainly how it read. I wasn’t taking offense, I was just pointing out how that was incorrect.

3. I’ve read the JAMA study and I’m familiar with Dr. Kessler’s work. Like any good lobbyist with a cause, he has always found through his research that tort reform was good. Studies with wider bases of his work have found results mixed at best. One of the major problems with studying the impact of “reform” is that courts don’t classify cases that narrowly, or didn’t until recently. The insurance industry does, however, but it is reluctant to release its raw data. Long and short, you can find studies that support both sides until the cows come home.

4. As for supporting the insurance industry, if physicians are not, why is their chief lobbying agency, the AMA, putting out verbatim the insurers’ claims? Why have they dedicated so much time to restricting victims’ recoveries but not to reforming insurers’ practices? Why are physicians not marching on their state capitols for insurance reform? Why are they not handing out brochures to patients or testifying to their state legislatures about insurance reform? Because they certainly are on tort reform? Maybe you aren’t, but your profession has certainly decided to play the point man for the insurance industry. Do you think I’m making all those examples up? Go to the AMA’s website.

5. You seem to think that I feel bad for you labeling me a “trial lawyer.” I don’t. After all, what do you think the lawyers who work for your malpractice carrier are? Besides, who are you going to hire when you are the one who is injured? A lawyer who does exclusively probate work?

“Curious, you and I are simply going to have to disagree on this issue of whether malpractice reforms influences physicians’ migration as well as their practice.”

Actually, we don’t have to disagree. I have no doubt that doctors are changing the way they practice and where they migrate to. That doesn’t mean their decisions to do so have any factual basis or have any effect on their ACTUAL liability risk.

“Recent studies also demonstrate that doctors perform costly and likely needless tests due to the threat of lawsuits, … defensive medicine as we like to call it.”

Health care in states with caps is just as expensive in states without. You will find no showing that it is any cheaper for the end consumer regardless.

As for this or that study, I can provide you ample studies as well. In fact, I can even provide you statements from the insurers themselves stating that caps at most effect 1% of their losses. If you don’t believe me, I would think you would at least believe them.

“And as far as restricing victims’ recoveries, let’s be clear, the recovery is for NON-ECONOMIC damages. Let’s not portray this as some issue where the patient — errr, I mean “victim” as you plaintiffs lawyers like to call them — is out $1,000,000 and can’t recover that full amount.”

That’s all well and good, but children, stay at home mothers, and the elderly don’t have economic loss beyond medical bills. And that amount of their recovery simply goes to their health insurer due to its right of subrogation. What would you call someone who had a double masectomy due to a faulty reading if not a victim? Lucky?

“No, you are not just a trial lawyer, you are a plaintiff’s personal injury lawyer. I know several and am friends with several. Been offered jobs by several. But still, you sound like one fer sure, dude.”

I’d be advocating for your interests just as strongly if you were injured and were getting stonewalled by the other side. That’s the thing, you can’t imagine it happening to you. No one can until it does.

And I’m a general practice lawyer who has a plaintiff’s practice. I don’t represent insurance companies because I don’t want to play the coding games you have to. I’ve done it before and it’s not worth it to me.

“Besides, who are you going to hire when you are the one who is injured?” Nobody!!! This is just another reason docs HATE insurance companies. I wager you already know that the carrier decides who will represent you.”

I think this illustrates your lack of understanding of the legal system. If you are injured in a car wreck, your insurance carrier doesn’t hire anyone to represent you unless you’re at fault. You have to get, and pay for, your own lawyer to recover damages for your economic and non-economic loss. The carrier only decides who represents the defendant.

“In my mind, you could always become reasonable and accept med-mal suits as ONE factor escalating the price of insurance premiums for physicians.”

Undoubtedly. The amount of payments will always effect the price of insurance in some way.

““Limited available data indicate that growth in malpractice premiums and claims payments has been slower in states that enacted tort reform laws that include certain caps on noneconomic damages.””

You left, out, conveniently, the sentence that followed that one from the report: “GAO could not determine
the extent to which differences in premiums and claims payments across states were caused by tort reform laws or other factors that influence such differences.”

Here’s the whole report – if you’re going to rely on it to buttress your claim, you should at least read it. Note its findings on claims of physicians leaving and the access problems as a result.

http://www.gao.gov/new.items/d03836.pdf

As for my claims to nobility, they do not exist. I do this job to make a living, same as you. And I have heard plenty of physicians wax eloquent about the nobility of their profession as if they work for free as well, so don’t get too righteous.

I am happy, and somewhat proud, of the fact that I represent people who aren’t wealthy, who can’t afford teams of $300/hr lawyers who come from tall buildings in major cities. I’m glad I can give them access to justice. And I make a comfortable living doing it, a result I’m not ashamed of any more than a physician should be ashamed of the money he/she makes.

If you’ve been an attorney, then you ought to appreciate just how little access to the legal system the average person has when compared to a Fortune 500 company or an insurance company. How contingency fees are the only way they can hope to obtain an attorney when confronted with a team of lawyers from one of the major national law firms and all the time and paperwork battling them involves. And you ought to think twice about making it harder for that person to recover. After all, no one is proposing reform for frivolous lawsuits filed by businesses, are they?

And, if you are an attorney, you should have known that plaintiffs don’t get their attorneys chosen by the insurer. I do believe a physician can negotiate in his/her malpractice policy the right to decline to settle, however. I know I have that in my legal malpractice policy and I’ve read of physicians having the same.

I don’t think you’re beholden to the insurance industry, or that you love them. I think that the AMA and many of your state groups are doing their bidding when it comes to tort reform though. I think many physicians have been whipped up into such a lawyer hating frenzy that they forget who is really affected by tort reform. Certainly not the lawyers – a good trial lawyer will always have work. The consumer is the one hurt. And the only person guaranteed to benefit is the insurer. They have no obligation to pass whatever savings they get on to physicians, and if they do reduce premiums, they have no obligation to keep them low.

“READ: in states that adopted caps, malpractice premiums rose by 10%; whereas, in states with no caps, premiums rose almost 29%.”

Again, as the report states, that conclusion cannot be reached based simply on the presence of caps. You are being intellectualy dishonest when you draw that conclusion. As I pointed out, California has insurance reform, which led to a significant reduction in rates (after MICRA failed to do so). Again, to say that the caps are responsible is intellectually dishonest. The report you are relying on doesn’t say that – it specifically says that conclusion cannot be drawn based on the limited data. By the way – you know who has the hard data? The insurers – but they aren’t releasing it in its raw form.

“But, they also get free care, sometimes free legal aid, free food, free or subsidized housing, etc …, which is more than I get.”

Yes, the poor are indeed lucky. You’ve obviously not spent much time living in subsidized housing or eating the amounts of food one can buy on food stamps, and we both know that the amount of legal aid available to the poor is extremely limited in the civil arena.

“My position is that I am cautiously in favor of reform due to the irresponsibility of juries”

Of all the civil cases tried every day, what percentage result in an incorrect finding? And how will caps improve that percentage? Can you answer those questions? If not, how can you call juries irresponsible? Based on a couple of stories in a newspaper? Did you ever notice how rarely you see defense verdicts? Where was the hue and outcry over the Baycol defense verdict? You’d seen no more of that evidence than you had the Vioxx. How do you know that wasn’t wrongly decided? The answer is, you don’t. But you’re not looking to punish individuals based on that verdict, are you? Whenever a company wins at trial, it’s a “triumph of the justice system”, but when they lose “juries are irresponsible”.

“I generally see juries today as irresponsible, casting any pretense of fiscal restraint and modicum of common sense to the wind, and many judges as beholden to special interest groups, such as ATLA.”

How many juries have you stood in front of? Do you know what the average verdict is? Are those juries who find for the defendant irresponsible? Do you think there are no judges beholden to corporate interests? If you don’t know the answers to these questions, how can you reach a conclusion?

I note you’re not advocating limits on businesses filing suit or what they can recover. Any reason?

“This perception is shared by more than two or three. Hence, the growing popularity of reform, caps in several venues, attempted caps in others, and procedural rule amendments for class actions in various others.”

The perception no doubt exists. The tort reform movement is not a new one. Corporate interests have been trying to limit their liability and their exposure to juries for decades. They prefer legislatures, which are more malleable. The amount of money spent on PR by corporate America on this issue is incredible. Who do you think funds sites like Overlawyered, Point of Law, or groups like ATRA? However, the statistics which support some of your claims about juries don’t exist. What’s more, the statistics supporting caps as a solution don’t exist as well. The insurers themselves will tell you that caps don’t have much effect on their losses. Why won’t you believe them? And they certainly won’t promise you your rates will go down if you limit their high end exposure. You’ve traded away the right to recover for nothing.

“While I don’t believe we are “in bed” together, I do strongly believe that we share common goals.”

A difference without a distinction. The sad part is, you don’t even look at history. You as a physician are guaranteed nothing from tort reform. You’re given lots of words, but nothing concrete. They just know that during the next economic downturn a few years from now, you will have forgotten all the promises and be pushing for even lower caps, just like the promises from the late 80s were forgotten. Look at Missouri – they enact caps, claims go down, payments go down, rates still go up, insurers still leave the state, and the remaining ones still come back for lower caps. And you guys still back them.

“but you obviously are a personal injury attorney ”

Not solely, my town is too small for that. I just don’t feel like playing insurance coding games, which is why I don’t represent the defense. Plus insurers have plenty of lawyers – did you know AIG has over 700 FIRMS on retainer? But who will you call if you get run over by a drunk Wal-Mart truck driver tonight? A real estate guru?

“And as far as your assertion that lawyers would not be affected by tort reform, … that is the biggest load of crap on this page so far.”

Do you think talented plaintiff’s lawyers like, say, Mark Lanier, couldn’t make tons of money working for the other side? Be serious. Those guys are the best of the best, and many companies would LOVE to have them working for them.

Ever notice how no one is seeking to limit how much defendants can pay their attorneys? Or how much can be recovered in business litigation? Ever wonder why that is? After all, tort filings are down over the last decade, while businesses suing businesses cases have doubled.

Curious, again, you are wrong. I am free to draw the conclusions I have, which ARE most certainly supported by the data. Nothing intellectually missing from that.

Again, if you wish to conclude the data is not accurate because it is unsupported, poor methodology, not sufficient size, etc …, you are free to make that conclusion. All I am saying is that my position is supported … despite your protestations to the contrary, … and quite frankly, I am surprised to see that you won’t acknowledge this extremely resonable inference.

And you obviously know less about the poor’s eating habits than you think. I must say though, in the short time we’ve “known” each other, I’ve come to expect that from you. http://www.nutrition.org/cgi/content/full/133/7/2225

And as far as the Vioxx verdict, I have never attacked or defended it.

And no, any time a company wins, I do not see that as a “triumph of the justice system,” which is why I am not whole-heartedly in favor or tinkering with the existing system. I think you are barking up the wrong tree, friend.

In fact, I see several existing problems with access to courts for med-mal actions, and no, I don’t believe placing caps will solve those problems. But, I can say quite confidently, however, that some reform must take place.

And yes, contrary to your assumptions about me, I do think penalties should be levied against companies who abuse the court-systems. In fact, some provisions are in place. See, Rule 11, FRCP. IF you are a lawyer, you should know this.

Unfortunately, judges — in whose hands the discretion rests — are most often unwillling to impose such penalties against anyone.

I also never said that talented trial lawyers would not have work. But for you to assert that tort reform would not affect trial lawyers is bunk. It is obvious from the amount of energy they are expending on this issue.

Like I said, it is obvious you and I are not going to agree on this issue. But for you to insist that my position is baseless is just plain foolish.

By the way, the Plaintiff’s expert (one of them) in the Vioxx trial was Dr. Isaac Weiner, from UCLA.

Does anyone know his credentials? Is he qualified to testify on the subject?