Code Brown

Although there are many loathsome and offensive strategies in the hopper designed to punish people who didn't have the foresight to be born into lives of privilege and comfort, the seemingly inexorable plod known as "tort reform" sticks in my craw extra specially. Maybe because it's so freaking obviously not going to do anything to remedy what is a legitimate cause for concern.

Yes, the cost of being in the doctor business has risen dramatically in the last 10-20 years because of steep increases in premiums for medical-liability insurance. Yes, that might encourage some doctors to close up shop, though I don't know of any convincing evidence that it's happening yet. Yes, that contributes to the increase in costs of health care (because the docs and hospitals pass it through to their customers -- i.e., the doctors don't absorb the costs, which would help explain why they don't actually have to "flee" states with higher premiums). Yes, doctors might practice "defensive medicine" for fear of being sued -- but they're still responsible for providing non-negligent medical care and advice. The important thing is not to fuck it up, right?

But then you get to the question of why medical-liability premiums are going up. To a large extent, it's because premiums are experience rated, meaning that an insurer looks at the past to determine what it costs to insure the risk in the future. And insurers have had to pay more claims in the last few years than they did in the years before that. More on this in a second.

But there are other factors. For one, insurers invest a significant amount of their income. During the '90's, insurers, like most everyone else, did very well in the stock market. So well, in fact, that they didn't have to rely on their customers' premium payments to maintain their desired profitability. In some cases, the high investment income allowed insurers to offer their products at artificially low rates. As the market "corrected itself," insurers had to correct their out-of-whack premiums.

But back to the issue of the rise in claims paid by medical-liability insurers - why the increase?

If insurers are paying more $ in claims, then doctors, hospitals, etc are making more or bigger claims for insurance benefits. Which means that they're getting sued more often or for larger amounts.

Why would that be?

It could be a fluke, a "partly fluky," in meteorological terms. That's always a possibility.

Doctors could be fucking up more, or worse, than they used to.

The numbers could be misleading. For example, suppose someone tells you that your state's insurers paid out 25% more in claims in 2003 than they did in 1997. Well, that doesn't tell you much. Was there a change in the terms of coverage? Do the two dollar amounts correspond to equal numbers of insureds?

Those possibilities warrant investigation. But they typically get no attention.

Instead, tort-reform advocates would have you believe that it's entirely the fault of a supposed spike in humongous jury awards (sometimes known as "late-term" or "partial-birth" jury awards -- no, wait, that's not right). Juries give too much to victims of medical malpractice. This is actually the argument. "You -- no, not you blinded by the unsterile procedure, you with the wrong leg amputated -- that's too much money."

But how do they know it's too much? Because it increases doctors' costs of doing business, and because it reduces insurers' profitability, that's how. Or maybe they just don't believe that things like "pain" and "suffering" are not or shouldn't be compensable. I doubt that your garden-variety Compassionate Conservative would stand next to an angry, grieving family and take that position.

No, I think they're stuck with the argument that large awards of noneconomic damages and punitive damages are bad because of their effect of the cost of healthcare and because they threaten patient access to certain kinds of doctors in certain areas.

To counteract these twin evils of minor increases in healthcare costs and potential, but as yet unproven, reductions in access to doctors, we must cap or eliminate damages for pain and suffering, and we must cap it at the level that California chose in the mid 1970's.

Right?

I mean, I'm sure that there's no other way to reduce healthcare costs by 1 or 2 percent. And surely there's no way for the medical industry to produce fewer instances of malpractice, like computerizing medical records or limiting the number of consecutive hours that surgeons work. And $250,000 must be the maximum amount of pain and suffering that results from medical malpractice. And that doctors need no economic incentive to avoid malpractice.

Kudos to the Journal of the AMA for publishing results of a study belying one of the principal claims made by those championing the limitation of damages awards in medical-liability lawsuits, to wit: doctors are not fleeing states where medical liability is not statutorily capped. In fact, the number of doctors in every state rose between 1985 and 2001.

In Missouri, we recently elected a retarded governor. He ran on this issue (and every other lame-ass, Contract-on-America wet dream idea you've been hearing about since 1960). His billboards said: "MISSOURI IS LOSING ITS DOCTORS!! AAAAAHHHH! AAAAAHHHH! AAAAAAHHHHHHHH! RUN FOR YOUR LIVES! OR AT THE VERY LEAST, VOTE REPUBLICAN!"

"But Mr. Blunt," I said, "what about the Free Market"?



A companion piece showed that doctors are partly to blame for increasing their own exposure to medical-malpractice liability. Ironically, out of fear of being sued, doctors responding to a survey stated that they practiced "defensive medicine," subjecting their patients to costly treatment that was not medically necessary, and that, in some case, was actually harmful to the patient. The AMA wants to use this as another reason to cap punitive damages in medical-malpractice cases. But aren't the doctors still responsible for their medical decisions? This is basically saying "My fear of lawsuits makes me a bad doctor." I don't buy it.

I know what you're saying: "Now, hold on a minute, Succotash. You mean to tell me that the things doctors do might have something to do with how often and how successfully they get sued by their patients?"

I know, it sounds CRAZy, but put in the ol' crock pot for a while, let it simmer, and see what you think of it after a few hours on low heat.

My 3-year-old daughter appears to have developed a catch phrase. I like it, mostly because she has a good delivery. As a plus, her use of it is sometimes only borderline appropriate, at best.

For example, yesterday when I got home from work, I noticed a pair of her pants on the bathroom floor. She's toilet trained, but has fairly frequent accidents. I asked about the pants on the floor, and she explained that she had had a small accident, so she changed her pants. She followed up with "How's THAT . . . for a terrific idea?"

I'd like to encourage her to use it, but not overdo it. That's probably asking too much. She's smart, but she's also three. And when you're three, and you have a reliable laugh line, you don't only trot it out once in a while.