Tort reform

Now for the matter of tort reform.

Them Doctors piss me off. They think they should be allowed an "excuse me I goofed" but the rest of us should be hung out to dry.

Doctors try and blame the legal system on their failings. They should be allowed an "Ooops I goofed, I cut off the right leg when I should have cut off the left." and we are supposed to excuse them.

How about this. How about allowing a truck driver to make a mistake on the highway while he conducts his business? But what? You have run into a truck driver on the highway that is not worthy of understanding? They exist. I am a truck driver and I too will condemn them. But how about you Doctors? Is everyone who plasters the sheepskin on his wall unworthy of condemnation?

How do we separate the sheep from the goats? We make the goats pay. Does the medical system within America have too many goats?

Within America I still think "good" Doctors will be able to make a living. "Good" doctors might be hard to find but they are still out there.

If it is impossible for "good" Doctors to make a living they better start thinking about us "good" truck drivers. We (truck drivers) have to deal with the legal system too. If you want to improve the legal system then improve it for us all.


Blogger Michael said...

It is not entirely clear to me what changes are planned in the American system but I assume that it is similar to changes introduced in Australia, i.e., a limitation of liability.

At some level, I agree with you that the arguments often espoused by doctors and doctors' groups are disingenuous and self-serving. However, there is an underlying problem that is often not adequately discussed and particularly denied by lawyers.

The burgening cost of medical indeminity is not associated with an increasing number of episodes of medical negligence. In fact, it almost seems, inversely proportional with cost and payouts going up despite true negligence going down with the practice of increasingly hypervigilent and "defensive" medicine.

So what is the problem? The problem is two fold.

Firstly, the medical profession suffers from what I term the burden of perfection. People want perfect results. Unfortunately, even "perfect practice" (insofar as "world-best practice") will not give perfect results. There is an underlying complication rate to anything and there are risks to everything. Doctors are not gods and sheer "bad luck" happens.

Secondly, people are increasingly litigating for bad outcomes rather than negligence. Lawyers and judges will claim that in every case where "negligence" is found, there was true negligence. This, however, is patently false. The classic landmark case is "Rogers vs Whittiker" where a woman who was blind in one eye, underwent an essentially cosmetic operation (on the bad eye) and as a complication (unavoidable and cannot be predicted) lost vision in the other eye. She claimed that if she knew that such an adverse event was possible, she would not have underwent the operation. This particular complication was rare, less than 1 in 10,000. She won.

The problem here is that there are many medical treatments (procedure, medications, etc.) that can have complication rates that are just as rare (or more common) and we cannot necessarily know what risk levels patients are not willing to tolerate for all of them, a priori. For medical practice to comply within the bounds of the Rogers vs. Whittiker ruling to prevent another equivalent case would simply not be practical.

Another stark example example is looking at cases of cerebral palsy. In the modern day, if you give birth to a child with CP, it is almost a certainty that you will receive a large payout. Inevitably, some source of "negligence" is found that "caused" the CP. However, modern pre-natal and antenatal care has advanced tremendously in the last 100 years and yet, the rate of cerebral palsy has not decreased! There is simply a "natural" background rate of CP that is not the result of any "negligence".

This is the underlying legal problem.

In real life, most cases of litigation never even go to court and result in out of court settlements. Why? It is not because there was any real negligence (and if it actually went to court, most would fail). It is because most doctors don't like wasting excessive amounts of time and money (on legal costs and lost income) going to court. More often than not, litigants win not on their legal merits but on inconvenience.

Solutions? Medical negligence claims should be initially assessed by a non-judicial process looking at the validity and factual accuracy of the claim. If the litigant has a reasonable case, then by all means go to court.

Secondly, for those unfortunately individuals who for some reason or another develop a chronic disorder (e.g., children with CP, adults with brain injury, etc.) there should be a source of funding for continuing care without having to resort litigation for a large payout (which needs to last until they die).

11/29/2005 08:27:00 PM  
Blogger Little David said...


Good argument for tort reform.

However if I put my mind to it I could make the same case for the truckdriver.

For example, if a truckdriver here in America happens to be involved in a fatal accident... even if the fatal accident is because the person who died had a heart attack and caused the accident... even if he/she was probably dead before the collision occurred... the career options for the truckdriver are greatly reduced. Why? Because if he is ever again involved in another accident involving death or injury the lawyers will point back to the fact the truckdriver was involved in a previous accident involving a fatality without explaining the details involved.

The career of the truckdriver is effectively over. He will either end up driving for one of the marginal companies willing to take him on because he will work for peanuts or he is going to have to find a new career.

Is this fair? No it is not. But it is reality, and it is reality for just about anyone who attempts to sell his services in the marketplace doing anything. It is not just Doctors and truckdrivers who have to deal with this.

Is tort reform necessary? Perhaps, since it is not unusual to hear of ridiculous jury awards in court cases. However I grin in amusement when I hear Doctors complain about how difficult they have it. To them I say "Welcome, my educated friend, to the real world."

If Doctors want tort reform they better support TOTAL tort reform. I do not think they have it so bad. I know what types of houses they live in and what kind of cars they drive. I think they have it pretty darn good.

12/06/2005 08:15:00 AM  
Blogger Michael said...

Australia isn't still quite like (thank goodness) of the United States insofar as "crazy" juries and litigation payouts.

I agree that "tort reform" is required and perhaps across the board. However, protection of the public is required as well. The problem, unfortunately, is that a "bad few" ruin the system for everyone else. Nuisance litigation is a serious problem, particularly in medicine and also in other fields like public liability.

However, there is a degree of self interest by trial lawyers who resist such changes: click here.

12/11/2005 12:45:00 AM  

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