This page contains a single entry from the blog posted on November 3, 2004 11:49 AM. The previous post in this blog was Turnovers. The next post in this blog is "Calm down, everybody". Many more can be found on the main index page or by looking through the archives.

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Wednesday, November 3, 2004

What's down, Doc?

The latest I've seen is that Oregon Measure 35 (your lifetime of excruciating pain and impotence = $500,000 to an insurance company) is being narrowly defeated.

Anybody got any different news on that?

Comments (15)

It's Measure 35 going down narrowly; Measure 37 -- the end government regulation measure -- won by a breathtakingly large margin.

You're quick, Augie. I fixed that within 10 seconds of posting it, but you beat me to it.

According to a radio report it's official. The measure has failed.

The Secretary of State's website has the measure failing: Yes --> 818,141; No --> 835,512


Lawyers win all the way around on these two measures:

Measure 35 would have taken away the medical malpractice tort jackpot gravy train.

Measure 37 will breed takings compensation litigation.

Perhaps off point, but could NOT believe the timing of this: http://cbs.marketwatch.com/news/story.asp?guid=%7B91A83C80%2D401B%2D45D4%2DB7C8%2DC9020A85670D%7D&dist=rss&siteid=mktw

Yes, that's $100,000,000,000 more of Bush-debt by this Christmas! I'm feeling a lot closer to Victoria, BC, than I actually am, geographically...

Hey Gordo, I asked Hurshall Rawls (who had a doctor remove his penis without consent, only to find out there was no reason to do so. Oops, my bad.) how he liked the "medical malpractice tort jackpot gravy train." He said it's better than Vegas! Greedy bastard. Yeah, the gravy train: that's the problem with medical malpractice. But if you get your jollies by denigrating the injuries of innocent victims of negligent acts, don't let Hurshall kill your buzz.

Yep, those "greedy trial lawyers." They're the No. 1 issue in this country today.

I hope Mr. Zupancic enjoys going back to work as a lawyer. LOL!

Hey Joel, and when your wife (or the way things are going, perhaps your daughter) can't find an obstetrician to give birth to her baby, maybe you'll decide that perpetuating the tort jackpot gravy train at the expense of real accountability for doctors wasn't worth it after all...

Real accountability for doctors is a joke. If the OBME really wanted to hold doctors accountable, as the OSB does for lawyers, they wouldn't make secret the investigations and conclusions. Want to find out how a lawyer screwed up, pick up a copy of the monthly bar journal or, better yet, call the bar and ask. Want to find out if your doctor screwed up, good luck getting the OBME to disclose.

If an OB/GYN can't afford to practice in a rural area due to rising malpractice premiums, you might want to inquire of the malpractice carrier why, in fact, the premiums are rising. These insurance carriers are accountable to no one. These same caps were instituted in Texas and their premiums have continued to rise. Those carriers in Texas now have the best of both worlds --- rising premiums and lower payouts.

There should be a special place in hell (or with the OSB disciplinary panel) for lawyers whose firms file plaintiffs' cases and then they run ads screaming about frivilous lawsuits. How many frivilous claims has DWT filed??
Jeff's point is right on. The data is absolutely conclusive that there's no connection between payouts and premiums. So Gordo's argument about access to care is a total red herring. But hey, it's way more fun to spout ideological political rhetoric than to have to base your views on evidence.

Jeff and Joel:

Perhaps you should stop reading plaintiff bar studies and look at some differing voices:


In 1993, the Office of Technology Assessment issued a report summarizing the first wave of studies on the experience of states that set limits on malpractice liability in the 1970s and 1980s. The report concluded that caps on damage awards consistently reduced the size of claims and, in turn, premium rates for malpractice insurance. Further, it found that limiting the use of joint-and-several liability, requiring awards to be offset by the value of collateral-source benefits, and reducing statutes of limitations for filing claims were also effective in slowing the growth of premiums.

More-recent studies have reached similar conclusions. A 2003 study that examined state data from 1993 to 2002 found that two restrictions--a cap on noneconomic damages and a ban on punitive damages--would together reduce premiums by more than one-third (all other things being equal).

And based on its own research on the effects of tort restrictions, the Congressional Budget Office (CBO) estimated that the provisions of the Help Efficient, Accessible, Low-cost, Timely Healthcare (HEALTH) Act of 2003 (H.R. 5) would lower premiums nationwide by an average of 25 percent to 30 percent from the levels likely to occur under current law. (The savings in each state would depend in part on the restrictions already in effect there.)

Office of Technology Assessment, Impact of Legal Reforms on Medical Malpractice Costs (September 1993), p. 66.

Kenneth E. Thorpe, "The Medical Malpractice `Crisis': Recent Trends and the Impact of State Tort Reforms" (paper presented at the Council on Health Care Economics and Policy conference, "Medical Malpractice in Crisis: Health Care Policy Options," Washington, D.C., March 3, 2003); and CBO calculations based on data from the Physician Insurers Association of America.

And, to follow up, it would be nice if the doctors and the lawyers got together and put together a real system of physician accountability (similar to attorney accountability) state-by-state. I bet the physicians would grudgingly concede to stricter professional scrutiny in return for tort reform.

But the lawyers? They're not interested in physician accountability. They like the current system just like it is, because that's where the jackpots are. The legal profession's alleged interest in quality medical care is, for the most part, a sham.

Not just "plaintiff bar studies". Here's what the Insurance Journal had to say.


Gordo, I agree with you on the working together idea (more below), and I'm glad you're citing some studies. But read them more carefully. Many of the conclusions are speculative, and not very applicable to Oregon.

For one, Oregon courts do not award punitive damages in med mal cases. And, as Jeff points out, Weiss Ratings found that premiums rose faster in states WITH caps on non-econ damages. It's clear that M35 would have provided little if any savings on premiums.

In fact, in Texas, which enacted a more severe $250,000 non-econ cap last year, the nation's largest med mal insurer reported in a filing with the Insurance Commisioner: "Capping non-economic damages will show loss savings of 1%." The company filed a premium increase of 19%. So much for tort reform.

The GAO found it was not possible to attribute premium savings to tort reform. It noted other fators: state insurance regulation, market forces, competition, interest rates and investment returns. (GAO-03-386 p. 7.) The CBO report quoted by Gordo similarly cites reduced investments and short-term factors in causing premium increases. In fact, the report notes that the cause of the insurance crisis in the late 80's was that insurers "misunderestimated" (as W. would say) future claims. It was NOT because of an increase in awards, i.e. Gordo's jackpot gravy train theory. Claims during that period were steady, yet premiums skyrocketed. Sound familiar? At the time, all we heard about were out-of-control lawsuits. Totally specious.

As far as Gordo's "access" red herring: the GAO reports that "many of the reported provider actions taken in response to malpractice pressures were not substantiated or did not widely affect access to health care." (GAO-03-386 p. 5.)

Back to working together: Lewis & Clark Law School's "The Advocate," Fall 2004 edition includes a lengthy article on medical malpractice that I authored. It's not on line, but I'm happy to forward it upon request. Here's the closing:

"Most Oregonians agree that there are significant problems with our health care delivery system; and that the unavailability of affordable malpractice insurance represents a serious problem for both doctors and patients. It is unfortunate that the solution offered to voters by Measure 35 does not address the many legitimate concerns that have been expressed regarding the quality, accessibility and affordability of health care. An expensive and misleading initiative campaign will do little to advance solutions to this complex public policy issue. Concerned Oregonians on all sides of this issue should work together to fashion a comprehensive approach. Only by bringing doctors, lawyers, insurance executives, patients, and lawmakers together can we hope to move beyond name-calling and finger-pointing, and to engage in a serious discussion of the underlying issues. Both political leadership and citizen participation will be required if we are to begin making progress on such a complicated problem."

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