I used to work at the VA that is affiliated w/ UCLA. While I have not worked directly w/ Dr. Weiner, I got the impression that he was a respected member of the EP community on the Westside. I was surprised when I heard that he was testifying on behalf of the plaintiff. And I was astounded to hear his reported testimony.

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

My comments on your knowledge of the poor were sarcastic and not in keeping with the spirit of amicable debate, and for that I apologize. However, having a partner who has a large Social Security Disability practice, I can assure you that living “free” is not that great of a life, and certainly not one you would choose.

“But, I can say quite confidently, however, that some reform must take place.”

Why? Because insurance rates have gone up? Why does that not make you advocate for insurance reform? Do you know what med mal insurers have historically taken in or paid out? What their annual profits are? How they spend their money?

Physicians win 75% of the time at trial. What basis do you have to say that that rate is incorrect and therefore reform is necessary?

The only position of yours which I will insist is not based in fact (not totally baseless, because I get where the emotional appeal comes from) is the belief that current proposed legislation for “tort reform” is necessary.

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.

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.

Regardless, you will notice the DATA in the study. READ: in states that adopted caps, malpractice premiums rose by 10%; whereas, in states with no caps, premiums rose almost 29%. That’s a difference of almost 20%. Now, you may not personally agree with my conclusion, or you may wish to provide a caveat, … BUT the DATA ITSELF — without question — supports my point of view. Therefore, I find it disturbing … if not somewhat intellectually dishonest … for you to assert that my position has been discredited.

Listen, I am all for the little guy, and I don’t like it at all that they get a raw deal in courts sometimes. Heck, they probably get a raw deal in life more often than the rich. But, they also get free care, sometimes free legal aid, free food, free or subsidized housing, etc …, which is more than I get. Heck, I don’t even get courteous service at McDonald’s in return for giving free health care to the poor.

My position is that I am cautiously in favor of reform due to the irresponsibility of juries and the greed of “trial lawyers” (plaintiff lawyers to be precise). I do think other options of reform exist, but they are not currently on the table. Thus, I cannot support them vehemently. While I am a lawyer (see below), I am not a lobbyist.

The bottom line is that where error abounds, reform follows. If people would not cane their show horses’ shins, a law would not be necessary to proscribe such conduct. 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. 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.

No self-righteous proclamations here.

I already explained the purpose of including my prior example: It was solely to further destruct your argument that we medical professionals are somehow “in bed” with the insurance industry. Need I quote you? “YOU guys better be careful about hopping in bed with the drug companies. … Just like YOU should … already regret jumping in bed with the insurance companies.” (Emphasis added.) While I don’t believe we are “in bed” together, I do strongly believe that we share common goals.

“IF” I’m a lawyer? Whatever. I would say IF YOU are one, … but you obviously are a personal injury attorney … either that or maybe some lackey at a consumer affairs group.

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.

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.

Med-mal premium increases are due to a variety of reasons, e.g., investment returns, cost of claims, cost of defense, cost of re-insurance, competition in the med-mal industry, etc …. At no time have I said med-mal verdicts is THE factor; rather it is ONE factor. You are the one that has taken the untenable position that it is NOT ANY factor at all.

But you are supremely incorrect in that it is just physician perception. From a 2003 GAO report: “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.”

To be fair, the AMA did not agree with the GAO’s ultimate conclusion, i.e., rising med-mal insurance costs do not GREATLY affect access to healthcare. But even the GAO admitted that access WAS AFFECTED, … ESPECIALLY in high-risk fields like neurosurgery and obstetrics.

That proves 2 of my points. Moreover, that doesn’t sound like JUST physician perception to me.

I would, however, agree with you that defensive medicine costs are the same regardless of venue. That also just makes sense. Ordering a needless CT in Mississippi costs just about the same as a needless CT in California. I submit that the isolated fact that the physician pays $5,000 less in premiums in one venue does not affect his decision to order a needless CT if he thinks he might be sued … period.

But for you to sit there and lecture me about how I can’t imagine “IT” happening to me is a complete load of CRAP to the N-th degree. You wanna take a guess as to who the pro-bono lawyer was who represented my near-destitute grandmother when NO OTHER ATTORNEY WOULD TAKE HER CASE BECAUSE IT WASN’T IN THEIR FINANCIAL INTERESTS?!

Please. Don’t pretend you guys are so noble, Robin Hood.

And as far as understanding the legal system, having practiced for about 7 years, before state agencies and boards, federal and state, having filed briefs before the U.S. Supreme Court, as an adminstrative law judge, as a staff attorney for the highest court in my state, … well, I bet I understand the legal system about as well as you.

But to return this serpentine thread to somewhat of its original focus and to further deconstruct your assertion that we docs are somehow beholden to the insurance industry, I merely pointed out another obvious reason we are not — i.e., if/when we are sued, we exercise almost NO discretion of the course of proceedings, from NOT being able to hire the lawyer of our choosing to settlement discussions, to just about anything else. We have NO say. But ahhh, you know that.

I completely fail to see how it is that you persist in this delusion that docs just LOOOOVE the insurance industry.

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.