Bush Takes A Swing At Frivolous Lawsuits

[nathaniel 0]

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That's simply not how medical negligence works. I think that's the basic misconception that forms the foundation for your argument.

It is how the justice system fails to interoperate with medicine negligence. Specialized arbitration bodies can probably fill this role, as they do in most other major industries. That was the other proposal I've made in this thread

nathaniel

My advice is to do what your parents did; get a job, sir. The bums will always lose. Do you hear me, Lebowski?

[nathaniel 0]

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On one hand you're trying to claim that getting rid of insurance will reduce the risk of negligence.

Not getting rid of insurance, but removing artificial demand for negligence. This will cause market conditions that favor medical practices that can reduce their risks.

nathaniel

My advice is to do what your parents did; get a job, sir. The bums will always lose. Do you hear me, Lebowski?

[PhillyKev 0]

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Specialized arbitration bodies can probably fill this role, as they do in most other major industries.

They already do. The vast majority of malpractice cases are handled in arbitration. Even after huge jury awards, they usually get relegated to arbitration rather than an appeal.

[PhillyKev 0]

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artificial demand for negligence

I increased my insurance coverage this year. I guess I'm demanding more negligence.

[nathaniel 0]

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Negligence is often an accident.

I partitioned accidents away from negligence. Accidents as things that could reasonably happen despite appropriate precautions.

Some types of negligence are due to acute failures on the part of the medical practitioner. This type cannot be addressed by insurance, the practitioner needs to stop.

Defining the boundary between accidents and acute failures is a job that the justice system cannot fill. We need specialized arbitration bodies for this. They work weill in other industries.

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Insurance doesn't protect the negligent against negligence - it protects the victim of the negligence from the consequences of the negligence.

In medicine it does both, the latter directly and the former indirectly though market conditions caused by artificial excess demand.

nathaniel

My advice is to do what your parents did; get a job, sir. The bums will always lose. Do you hear me, Lebowski?

[nathaniel 0]

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They already do. The vast majority of malpractice cases are handled in arbitration. Even after huge jury awards, they usually get relegated to arbitration rather than an appeal.

I'm not familiar with any major medical arbitration bodies. What I have in mind is akin to what the NASD (specifically, the NASDr) does for the financial markets. Specialized arbitration body != lawyers duking it out before court, although specialized arbitration bodies tend to get used before court.

nathaniel

My advice is to do what your parents did; get a job, sir. The bums will always lose. Do you hear me, Lebowski?

[mr2mk1g 10]

This precisely what I'm talking about when I say you're working with a fundamentally flawed definition of negligence. Although I do now see where you're coming from - you think court awards are there to stop people doing negligent things.... that's simply not true.

As far as negligence is concerned there is no difference between an "accident" and an "acute failure" as you term them. Clinical negligence is simply when there act (or omission to act) falls below the standard to be expected of a reasonable clinician performing that particular treatment.

Damages are NOT to punish the negligent. They are to compensate the injured party. Insurance is not to protect again punishment - it is there to provide a pot into which the injured can dip.

The mechanism by which you stop doctors committing "acute failures" as you put it is to make use of your doctor’s national governing body. In the case of the UK this is the GMC who strike doctors from their rolls or otherwise punish them.

Civil courts on both sides of the pond are the same in that they DON'T punish people - they compensate. You've simply got totally the wrong end of the stick when it comes to what damages are there for.

(note to all - the above definition of clin. neg. is a paraphrase of the UK definition - it may or may not be a terribly accurate representation of the US definition although I am lead to believe the two are not materially dissimilar).

[Ron 10]

Honestly while I like the idea...I will wait till I see action, not talk.

"No free man shall ever be debarred the use of arms." -- Thomas Jefferson, Thomas Jefferson Papers, 334

[nathaniel 0]

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This precisely what I'm talking about when I say you're working with a fundamentally flawed definition of negligence. And I now see where you're coming from. You think court awards are there to stop people doing negligent things.... that's simply not true.

You must not be familiar with economic theory of governance, because it is what I am spouting here.

Damages exist not to punish per se, but to reconcile the diverging interests of the two parties involved. So that well-intentioned doctors, in aggregate, and by default would take the same precautions for their patients they would have for themselves. Which, presumably is appropriate for the average person reflecting the doctors' specialized knowledge of medicine.

Patients wishing yet less risk should purchase additional insurance themselves.

Patients wishing more risk should be given the facilities under which it may be rationally selected based on the patient's preference, and provision of such facilities should exonerate the practitioner should the risks turn sour.

This one of the things that industry associations have been particularly good at, in other industries at least.

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As far as negligence is concerned there is no difference between an "accident" and an "acute failure" as you term them. Clinical negligence is simply when there act (or omission to act) falls below the standard to be expected of a reasonable clinician performing that particular treatment.

The justice system has not yet defined it efficiently, it has terms like negligence vs gross negligence, etc. Specialized arbitration bodies are much more suited for the task as they are much more capable of keeping pace with technological advance.

edit to add:
In the states we have a separate set of damages that a court may award depending on the circumstances, called Punitive Damages, that are intended to dissuade actions that are wanton or willfully malicious.


nathaniel

My advice is to do what your parents did; get a job, sir. The bums will always lose. Do you hear me, Lebowski?

[mr2mk1g 10]

At the end of the day I think you're fighting a symptom - not a cause. Insurance does not cause frivolous lawsuits - it is necessitated by them.

An interesting if odd conversation - I shall now bow out as my office is departing for a Christmas meal curtsey of the partners.

Merry crimble and all that.

[nathaniel 0]

Cheers!

nathaniel

My advice is to do what your parents did; get a job, sir. The bums will always lose. Do you hear me, Lebowski?

[PhillyKev 0]

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You must not be familiar with economic theory of governance,

Actually it seems your are pushing the opposite. The theory of governance relates to the role of governments and institutions in influencing economic policy, organizing reliable payment and clearance systems, standardizing accounting procedures, and a uniform legal code. That's exactly the role that the insurance industry plays.

[lawrocket 3]

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An accident that a medical service professional cannot avoid is one he should not be liable for.

Okay. Let me clarify something for you here. This is fundamental to the way the law operates, and considering my specialty of medical malpractice, I believe I can give a fairly decent opinion.

A doctor can kill somebody, but it does not mean the doctor did anything wrong. To prove a doctor is negligent you have to show that he deviated from the standard of care for a similarly situated doctor, and that this deviation caused injury.

Let's say that a heart surgeon is doing a transplant and the patient dies. Inherently, there is a risk of death when a heart is removed, right? But, the cause of death is important. If the person died because of a post-op rejection, there's probably no breach in the standard of care. But, if the person wasn't given anti-rejection drugs, then there would be a breach.

If there are known risks that can happen despite perfect management, then of course there should be no liability. But it doesn't mean that doctos don't get sued. They just end up winning after great expense.

My wife is hotter than your wife.

[nathaniel 0]

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Actually it seems your are pushing the opposite. The theory of governance relates to the role of governments and institutions in influencing economic policy, organizing reliable payment and clearance systems, standardizing accounting procedures, and a uniform legal code. That's exactly the role that the insurance industry plays.

No, thats not what I mean by the economic theory of governance. What you described I would call the government of economic policy.

I put the emphasis on economic.

Economic theory of government is the study of how to use the theory of economics to further the government's own ends. Eg, make a fine for littering at least 10x as high as the economic benefit of littering to the litterer, because the probability is only 0.10 of catching him (I made up the percentage). Set civil sanctions just high enough to create an economic incentive for desired behavior. Voucher systems for pollution, and the like. Using the theory of economics to determine the innovative approaches for solving issues of government, in this case, to fix undesired market behaviour.

Strictly speaking there's nothing immediately wrong with the market as it exists today, it's that patients and doctors are asking the government to try to bring insurance prices down. Insurers aren't all going out of business, and in most places services are still available, though at a higher price than many patients would prefer....

With a few wrong turns, the market is probably in danger of collapse tho, and the gov't should address this too.

nathaniel

My advice is to do what your parents did; get a job, sir. The bums will always lose. Do you hear me, Lebowski?

[nathaniel 0]

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Okay. Let me clarify something for you here. This is fundamental to the way the law operates, and considering my specialty of medical malpractice, I believe I can give a fairly decent opinion.
...
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If there are known risks that can happen despite perfect management, then of course there should be no liability. But it doesn't mean that doctos don't get sued. They just end up winning after great expense.

Thank you for writing that, for despite what I wrote I like your terms better.

It is these known risks that can happen despite perfect management for which the insurance business is perfectly suited to protect a patient against, should the patient be willing to pay for protection.

Things like leaving instruments in a patient's chest cavity or chopping off the wrong leg are things that insurance has a hard time with, because there's no "natural" or underlying rate at which it should happen.

There's a nasty gray area between the two types, and defining the standardsto differentiate them is something that's just outside the skill set of our justice system.

nathaniel

My advice is to do what your parents did; get a job, sir. The bums will always lose. Do you hear me, Lebowski?

[lawrocket 3]

Actually, the system is set up so the wrongdoer pays. I get insurance for two purposes:

1) IN the event I am the wrongdoer; and
2) In the event I am wronged.

When #2 applies, the insurance will cover me. However, I still have the right to recover against the wrongdoer (and evidence of insurance paid already is not admissible via the "collateral source rule."). So, there is a system set up where double-recovery is possible.

Why is that? So that the wrongdoer pays. Usually, true-double recovery does not occur since the insurer will have a lien on any amounts you recover, or the insurer will sue the worngdoer via subrogation.

Innocent parties shouldn't have to pony up the dough. The wrongdoers should be the liable parties.

My wife is hotter than your wife.

[jcd11235 0]

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No one, consciously or otherwise, calculates their financial exposure to the risk of an accident when driving and modifies their driving habits accordingly.

I change lanes, whenever possible, when I find myself following a Mercedes, Jaguar, etc., mostly because we have screwed up traffic laws that give the right of way to the slow car in every lane, and my insurance would max out before potential damages are paid, if there were an accident.

Math tutoring available. Only $6! per hour! First lesson: Factorials!

[PhillyKev 0]

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No one, consciously or otherwise, calculates their financial exposure to the risk of an accident when driving and modifies their driving habits accordingly.

I change lanes, whenever possible, when I find myself following a Mercedes, Jaguar, etc., mostly because we have screwed up traffic laws that give the right of way to the slow car in every lane, and my insurance would max out before potential damages are paid, if there were an accident.

Well that's just silly. Do you intend to hit an old beater? Probably not. If you did, it would be an accident, most likely because you didn't see them.

[jcd11235 0]

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Well that's just silly. Do you intend to hit an old beater? Probably not. If you did, it would be an accident, most likely because you didn't see them.

I've just been bitten once to often. And, no, I don't intend to hit a beater, or anyone else, but experience tells me that, in the event of an accident, It is a much smaller headache to hit a car that my insurance will pay forcompletely, as opposed to only making a down payment.

Math tutoring available. Only $6! per hour! First lesson: Factorials!

[kelpdiver 2]

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I change lanes, whenever possible, when I find myself following a Mercedes, Jaguar, etc., mostly because we have screwed up traffic laws that give the right of way to the slow car in every lane, and my insurance would max out before potential damages are paid, if there were an accident.

You should up the limits. The incremental cost for the liability portion is pretty low since most accidents don't even reach the typical state require minimums. But the higher cost of minor accidents due to crumple zones and multiple airbags has really jacked up the rates for collision. It's close to 75% for my motorcycle - will be dropped as soon as I pay BMW back their money.

[nathaniel 0]

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I get insurance for two purposes:
[cut]
2) In the event I am wronged.
[cut]
Innocent parties shouldn't have to pony up the dough. The wrongdoers should be the liable parties.

Insurance doesn't exist to right the wrongs of wrongdoers, it exists to make known risks more palatable. This is by the economic definition of risk. It's a little confusing, because sometimes the uncertainty that an insurance policy addresses is actually a crime (eg, car theft), but the point is that the quantitative aspects of the risk must be available & considered explicitly. Medicine is different from cars in this case because it is much more difficult to establish the baseline for "comprehensive" style medical coverage. The knowledge is too specialized and the technology changes too fast to establish the underlying probabilities effectively. Which is not to say that someone won't sell you insurance for it, but rather to say there's going to be a sizeable inefficiency in the process. Which can manifest itself in extraordinarily expensive policies or in insurance companies going out of business due to underquoting their policies.

By involving insurance in righting wrongs we're breaking our medical markets. That's what arbitration & if they fail then the judicial system is for. Due to the complexity of medicine the courts aren't too good at it, so it seems that improving our specialized arbitrators is a promising strategy.

nathaniel

My advice is to do what your parents did; get a job, sir. The bums will always lose. Do you hear me, Lebowski?