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Question of the day

Monday, Aug 28, 2006

With the one-year anniversary just around the corner of Gov. Blagojevich’s signing the medical malpractice bill into law, the Post-Dispatch takes a look back and ahead.

Doctors and business advocates want further reforms, as they consider Illinois’ bill only a first step. Lawyers and victims advocates are calling for a repeal of the legislation that they say hinders the rights of injured people. And both sides candidly agree the issue is thorny for elected officials.

“This has become a political football,” said Dr. Harold L. Jensen, chairman of the ISMIE Mutual Insurance Co., the major malpractice insurer in the state.

This was the most interesting quote in the story.

“They’re waiting to find a tragic case, one where it’s going to be very difficult for a jury and for a trial court judge to award only the capped amount of money,” said Ed Murnane, president of the Illinois Civil Justice League, which strongly supported the legislation.

Read the whole thing, then answer the question: Did the medical malpractice bill go too far, not far enough or was it just about right? Explain.

- Posted by Rich Miller        

32 Comments
  1. - Max Maxwell - Monday, Aug 28, 06 @ 7:33 am:

    The malpractice bill couldn’t get through under Jim Thompson, whose father ran the medical society, but it passes under Blago. How curious until you see who Blago is using for his lawyer…


  2. - Snidely Whiplash - Monday, Aug 28, 06 @ 7:35 am:

    It went too far. Let’s say some poor slob loses both legs due to a dumb surgical mistake. Said slob is all of 30 years old. Compensation for being called “Stumpy” for the rest of his days? A whopping $500,000. Over the last decade at least, medical care costs and malpractice insurance have gone up dramatically each year, while jury awards for malpractice have stagnated. So, where is the correlation between malpractice premiums and malpractice claims? People as intelligent as MD’s should know better than to be so naive as to fall for the self-serving arguments of insurance executives who make seven figures annually off their premiums … really sounds like the insurance industry is in financial trouble, right?

    The problem is that greedy insurance companies are gouging well-off physicians, blaming “exhorbitant” jury awards to innocent victims of NEGLIGENT doctors. So, the “logical” solution is to correct the “problem” on the backs of the innocent victims?

    Their token 5% reduction rate hardly reflects on their argument, doesn’t it? Either they lied about the effects of jury awards, or they’re now gouging doctors even more on their premiums. OR BOTH. So, where are the answers?

    Let’s ask Stumpy in 10 years of mega inflation how much of his $500,000 is left, and at the same time check the net worth of the insurance company executives over the same period. I think that the doctors are the victims of a greedy insurance industry, and of their own negligent collegues.

    Also, let’s not forget that most victims of medical malpractice never receive one cent in compensation to begin with, because it’s so damned difficult to even FILE a medical medical malpractice case, let alone win one, that most attorneys only accept very aggregious cases, in which negligence is blatantly obvious. Doctors enjoy a privilege no other group has in our courts: in order to even file a medical malpractice suit in Illinois courts, a plaintiff has to attach an affidavit from a doctor of the same specialty specifically stating under oath how and why the offending doctor was negligent! Doctors band together to protect their own in these situations. So, even if a plaintiff CAN get one of these affidavits, he can only do so by paying thousands of dollars to a “doctor” who does these affidavints FOR A LIVING. With $5,000-$10,000 (or often much more) in costs involved just to FILE a case, most victims of medical malpractice can’t even find a lawyer to file their case.

    If everyone had the privileges of doctors and their insurers in our courts, there wouldn’t be many lawsuits left to bother with. Nice having enough money to spread around to buy influence, isn’t it?


  3. - Southern Illinoisian - Monday, Aug 28, 06 @ 7:37 am:

    The medical malpractice bill did not go far enough. In reality, it should have been a bill to cap lawyer’s fees, instead of patient’s awards. That’s where the real tragedy lies in this story.

    I also thought that the reporter did a poor job of pointing out that the victim’s “advocacy groups” quoted are also sponsored by the same trail lawyers organizations. Hardly a group with the PATIENT’s best interests at heart. Those patients are the big losers in this system.


  4. - The Horse - Monday, Aug 28, 06 @ 7:39 am:

    The only losers in this whole deal are the blood sucking lawyers…. Anyone who looked at the huge exodus of physicians along our borders knows it had to happen, and that it took too long.


  5. - Middle Majority - Monday, Aug 28, 06 @ 8:08 am:

    Yes, lawyers’ fees still need to be capped. If any group could be labeled “greedy and self-serving” it would be trial lawyers. If a plaintiff cannot find a lawyer for his case, it is because the lawyer does not believe the case is winable or profitable.

    Every bad outcome does not indicate negligence and malpractice.

    As for greedy and self-serving insurance execs, a natural limiter already exists - the market. If malpractice insurance were so lucrative in this state, there would be more players and the competition for malpractice premiums would drive the price down. As it is, many insurers still avoid Illinois.


  6. - Skeeter - Monday, Aug 28, 06 @ 8:36 am:

    Snidely,

    Your comments are typical of this debate.

    The $500,000 cap applies to non-economic damages only.

    The person can still recover all of his future medical expenses, lost income, etc.

    The person is going to suffer no economic loss. What the person will lose in the dollars attributed to the pain and suffering from the injury, and most of those awards are nothing more than a measure of how much the jury likes the plaintiff. Nice guy? Big verdict. Ignorant slob? Low verdict.


  7. - VanillaMan - Monday, Aug 28, 06 @ 9:38 am:

    What started as a noble legal moment in helping those who endured tragedies at the hands of incompetent persons, had turned into a sick game where millionaire lawyers extort cash for complainers.

    The law was needed, and sadly, it needs to be expanded. Until some lawyers once again see ambulances as emergency medical transportation, and not meal tickets, we will need to curb their abuses of our system.

    We have only so much time and money to run our legal system. Lets do what we can to keep it focused on dispensing justice, not as an ATM machine for the dishonest.


  8. - Truthful James - Monday, Aug 28, 06 @ 9:39 am:

    Lawyers fees could effectively be capped if the payment of such fees were made by the losing side, with treble damages for frivolous lawsuits, as separately ruled.

    Also, this would clear up the court calendars and return control of the Damage Lottery Wheel to the Courts instead of to the plaintiff bar.


  9. - Marie - Monday, Aug 28, 06 @ 10:23 am:

    This is ridiculous. “Tort reform” is a protection racket for the medical industry. Economic and attorney fee caps are designed as welfare for rich people. The medical industry has successfully diverted attention away from their incompetent practitioners and onto the lawyers. Lawyers are not the problem in medical malpractice. Lawyers are their scapegoats.

    Part of the reason it’s so hard to bring a malpractice suit is because doctors clam up and look the other way when they see other doctors having committed malpractice. These doctors are liars for the sake of their own wallets and not the welfare of their patients.

    People who have been injured at the hand of their trusted physician or medical staff don’t stand a chance until doctors are forced to report the errors of other doctors. That is the reform we need.


  10. - Truthful James - Monday, Aug 28, 06 @ 10:46 am:

    Marie –

    Never fear, the Kings of Tort have stables of doctors and other experts ready to testify at high fees in any trial. They flock to the money as well.


  11. - Anon. - Monday, Aug 28, 06 @ 11:43 am:

    Skeeter,

    Then it’s ok with you if someone chops you legs off for $500k, so long as your lost wages and medical bills are covered? Your argument is that $500k is fair compensation for 40 years of a ruined, pain-ridden and miserable life? That works out to $12,500 per year. That sure sounds fair to me.


  12. - Skeeter - Monday, Aug 28, 06 @ 11:56 am:

    Anon:

    Why do you believe that any amount of money can or should “compensate” you for the pain and suffering?

    Are you claiming that is somebody pays you $5 million for you lost leg, tnen you would just say “That’s fair. We are even now.”

    Should we roll the dice with a jury?

    Jury likes you: “$12.5 million.”
    Jury thinks you are a jerk: “25,000.00.”

    Does that seem fair to you? Does that seem like justice?

    Nice smile = nice verdict. What a fine system we have here.

    At least the legislature has set some guidelines. Juries sure can’t.


  13. - Anon. - Monday, Aug 28, 06 @ 12:09 pm:

    I actually agree with you on that aspect, but by saying that noone’s lifetime of suffering is worth more than $500,000 per year, I think the legislature took the wrong route.

    I agree that the jury system is subjective and generally unfair in that “jury like you, you do good, jury think you butthole, you lose”, or even that the same parties in front of a different jury could end up with an opposite result. Unfortunately, we’re stuck, at least for now, with this system.

    So yes, the legislature has done SOMETHING about the situation, but I think it’s the WRONG thing. They took the only innocent and only victimized parties to the whole rotten scenario and penalized THEM. Why couldn’t they put a cap on malpractice insurance premiums? Please, answer that: why is that less fair than putting a cap on the recovery of victims?


  14. - Anon. - Monday, Aug 28, 06 @ 12:11 pm:

    To correct a mistake: That’s “worth more than $500,000 for a lifetime”, NOT “$500,000 per year”.


  15. - Skeeter - Monday, Aug 28, 06 @ 12:19 pm:

    In response:

    Because price caps would drive more insurers out
    of Illinois.

    Even with this legislation some med-mal insurers are already leaving Illinois. Doctors are scrambling to find coverage anywhere.


  16. - Anonymous - Monday, Aug 28, 06 @ 12:25 pm:

    The reason medicine is so expensive is not just the fancy technology, but because we’ve created a huge bureaucratic paperwork nightmare that employees many lawyers, insurers, government staff, and medical office people. All patients wanted was doctors and nurses.

    We need to encourage youth to get out of paper pushing and study science to practice medicine by shifting the financial rewards.

    If individuals had their own insurance they would pay a lot more attention to the costs and quality, forcing both insurers and doctors to compete. Why worry if your job’s insurance is footing the bill, right? Statistical data on every doctor and hospital, along with publically posted prices would become standard.

    We also fail to emphasize far less expensive prevention because it’s much more profitable for doctors, lawyers, and insurers to react to more serious problems. Here, government intervention may be necessary because the market has shown insufficient interest in better protecting patients health and holding down costs.


  17. - Jed Tenahci - Monday, Aug 28, 06 @ 12:35 pm:

    As I recall, the state ordered ISMIE to reduce its proposed rate increase for med mal insurance this year because ISMIE could not justify it by actuarial standards. One has to wonder how much less ISMIE’s rates would have gone up over the years if there had been some oversight of its rates. Premiums which have no relation to risk are the real reason for the outrageous rates doctors are paying insurance companies.


  18. - HANKSTER - Monday, Aug 28, 06 @ 12:42 pm:

    I believe it best that a jury of our peers be the one who determines damages. Not legislators, not the insurance companies, not doctors, not lawyers, but the people that make up juries.


  19. - Bill - Monday, Aug 28, 06 @ 12:42 pm:

    Since the bill is unconstitutional it obviously went to far.


  20. - Skeeter - Monday, Aug 28, 06 @ 1:14 pm:

    Interesting political note:

    Plaintiffs’ attorney are mad as hell at Blago about tort reform.

    When he came, they thought they would get the Structural Work Act back. Instead the Structural Work Act is still dead, and they got this.

    I have to think they will keep their wallets closed this year.


  21. - NW burbs - Monday, Aug 28, 06 @ 3:05 pm:

    How many lies can we fit in one thread conservatives?

    Mass exodus of doctors? A few anecdotes does not an exodus make. Take a look at medical licensing in this state and you’ll see it’s held fairly steady.

    Ballooning med-mal insurance rates? The doctors self-insure through the state medical society. They ought to ask themselves why they’re paying so much (surely the decline in the stock market a few years back had nothing to do with it, wink, wink).

    Lawyers are bleeding patients with fees? Ha! Everyone hates lawyers til they need one. How much is it worth to you to be fairly compensated for malpractice which results in a lost limb or, worse, a lost loved one. You guys ought to ask Trial Lawyers Peter Roskam (Congressional candidate) and Matt Murphy (State Senate candidate) what they think about tort “reform”. Have fun watching them squirm.

    Our tort system is about responsibility and equality. Tort “reform” is the domain of those people trying to weasle out of responsibility (doctors who commit malpractice — in reality a very small percentage of doctors commit the vast majority of malpractice) and who don’t believe in a level playing field (big corporations who feel they have a right to impose their will — their profit margin — on anyone and everyone).


  22. - Truthful James - Monday, Aug 28, 06 @ 3:47 pm:

    NW Burbs —

    “Our tort system is about responsibility and equality.” NOT

    If that were so, then it would not matter in which jurisdiction the suit was filed. Or are responsibility and equality only demonstrated by the localities which generate the highest damage awards?

    And what about the phony experts — as in the asbestos cases — brought along by the Kings of Tort?

    What is responsibility? Nobody is weaselling out. Big corporations should be judged on the damage they do, not their size and ability to pay.

    The Kings of Tort well know that the best thing to do is to estimate what the defendant’s cost of going to trial will be and the probability range of awards should the case go to trial, and settle for one dollar less. And it is all because the plaintiff bar has zero liability if thei case is defeated. The equation is skewed.

    Let’s reform the system. Losers pay the opponents actual legal costs not the punitive costs they tack onto the suit. The complete award goes to the winner.

    You keep backing only the saintly and charitable plaintiff attorneys and lump the defense counsel in with “the evildoers.” Why?


  23. - Ed Murnane - Monday, Aug 28, 06 @ 4:37 pm:

    NW Burbs,

    Advocates of “tort reform” do not think all trial lawyers are bad. If a wrong has been done, we’d hope there would be a good plaintiff’s lawyer and a good defense lawyer (both of them are “trial” lawyers and we’d hope there would be a fair judge and a fair jury.

    We also hope the laws that govern the specific incident are fair and that sometimes is the problem that leads to the call for “tort reform.”

    Peter Roskam happens to be a plaintiffs’ lawyer who we think has been fair. In fact, he is a supporter of many of the reforms that have been proposed and he has been a sponsor of some important reform legislation. We know where he stands and it’s easy to support him.


  24. - Skeeter - Monday, Aug 28, 06 @ 5:17 pm:

    Ed,

    The fact that your organization would support an ambulance chaser like Roskam is a shame. Where was he when he first came to Springfield? Was he “present” when tort reform work needed to be done?

    What did he say to Terrance Lavin when he thought Lavin’s friends would send him some cash?

    He supports tort reform now only because he thinks that people like you will send him to Congress if he does. He doesn’t care about tort reform. If he did, he would stop taking his pathetic slip and fall cases.

    He lied to Lavin once. What makes you believe he isn’t lying to you?

    Really believe he will vote for you? Or will he vote “present” again?


  25. - Ed Murnane - Monday, Aug 28, 06 @ 5:24 pm:

    Skeeter,

    Our organization does not support candidates in federal races; my support of Roskam is personal. But I think you are mistaking Roskam for former State Rep. Al Salvi who did vote “present” on the 1995 tort reform bill. Roskam voted “aye.”

    And he has supported (with “aye” votes) every significant reform vote that has come before him in committee or on the floor of the Senate since 1995.


  26. - Yellow Dog Democrat - Monday, Aug 28, 06 @ 7:09 pm:

    Calling last year’s med mal bill “tort reform” is like calling a funeral “health care reform.”

    Ed Murnane won’t be happy until no business or corporation in America can be held accountable anymore. Unless they want to sue each other of course, and then it’s a fundamental right protected under the Constitution.

    I’ve got a proposition for Mr. Murnane and everybody else who thinks $500,000 is fair compensation for pain and suffering, based on my summer spent ranching in Colorado. I’m opening a clinic in Springfield where we’ll castrate you without anesthesia, just for kicks. Since there won’t be any follow-up medical bills and you won’t miss a day of work, we think $500,000 is fair compensation for your pain and suffering.

    Line up, boys! Send me an e-mail, put your family jewels where your mouth is, and I can promise you the first spot in the line.


  27. - Skeeter - Monday, Aug 28, 06 @ 8:52 pm:

    YDD,
    The problem with your argument is that you assume that there IS some amount of money where you would say “now we are even” to that sort or procedure.

    You also assume that certain plaintiff’s wouldn’t in fact line up for the amount of money you are suggesting and jump at it.

    Since money does not lead to a fair exchange for the pain, why should we roll the dice? Courts have little to no guidance as to what constitutes reasonable compensation for pain and suffering, and juries are never advised on it. It is completely random.

    The system should be about compensation. We have no way to measure the loss, so how can we ever have fair compensation for pain?

    Punishing doctors for screwing up should not be a role of the tort system. The medical profession must police itself, but the tort system is a very bad way to police doctors.

    I note that the other alternative is similar to the worker’s comp. system. Lose a leg: Here is your award, based on age. Break one finger? Here is your award. Somehow I don’t expect the plaintiffs’ attorneys to go for that system either.


  28. - NW burbs - Monday, Aug 28, 06 @ 10:10 pm:

    Skeeter, it’s called actuarial sciences for a reason. Actuarians can and do indeed calculate to the dollar how much something (a limb, an eye, an organ) is worth — that’s the fair compensation part. It is nowhere near random and is in fact calculated based on hard data.

    The pain and suffering aspect is meant not so much as compensation for pain and suffering but also as punishment to deter such wrongdoing in the future.

    The tort system is the only system we have for punishing malpracticing physicians. Since it is only a small minority of doctors which commits the large majority of malpractice it is clear that the profession is unwilling to police itself and expunge the few malpracticing doctors from their ranks.

    It’s puzzling how James and Ed can rationalize their partisan support for hypocritical conservatives by (a) ignoring what I wrote in favor of writing what they wanted to say anyway and (b) changing the subject (and/or putting words in my mouth).

    I notice no one’s supporting Matt “I didn’t mean what I said in the primary” Murphy. Poor guy, everyone’s closing their door in his uber-conservative face.


  29. - Snidely Whiplash - Monday, Aug 28, 06 @ 11:01 pm:

    Skeeter,

    You said: “Since money does not lead to a fair exchange for the pain, why should we roll the dice?”

    So, you’re saying that “no exchange is fair for a lifetime of pain”? Our courts measure compensation in money. Period. No, money can’t “compensate” for all that suffering, but it can help to alleviate it. Ok, so you get ecomonic damages. That means that if you’re a 30 year old ditch digger, you’ll get 35 years of ditchdigger’s wages. And your medical bills paid. Geez, it’s too much to ask to give stumpy a home to spend his miserable days in? Perhaps money to occupy his final final 45 years or so? Some education, maybe? A new computer (which is about all he’ll be able to do the rest of his life) every few years, maybe. A chance to send his kids to college, since his “economic” damages ensure that he’ll NEVER have the chance to rise above the life of a ditchdigger?

    What a cold-hearted argument! I sincerely hope you’re never the victim of malpractice … were that ever to be the case, why do I get the feeling that you’ll believe that YOUR pain and suffering is worth more than a few thousand dollars a year?

    And for what it’s worth, the “blood sucking lawyers” get paid a percentage of the victim’s recovery, and if the victim loses, nothing at all. So much for making it the lawyers’ fault.

    “Tort reform” to me means punishing litigants and attorneys who file BASELESS lawsuits in order to harass someone for money. It does NOT mean screwing legitimate victims out of their recovery and letting the person who ruined their life off scot free.

    Funny, but you try to put caps on medical rates, and you call it “socialized medicine.” Price controls are called “communism.” Why doesn’t the same rule apply to caps on victims of negligence? Oh yeah, because they don’t have money and political influence.

    Since you’re such an expert on “tort reform”, may I ask how you came about your “expertise”?


  30. - Snidely Whiplash - Monday, Aug 28, 06 @ 11:06 pm:

    And by the way, don’t compare medical negligence to workerman’s compensation. The reason for the low awards is that there’s a trade off by the employer: the worker doesn’t have to prove negligence. Are you saying doctors are willing to give up banding together and covering up their negligence?

    As far as doctors policing themselves, please. They stick together, and refuse to speak out against what they know is wrong. They destroy, alter and “lose” medical records.

    One thing you have to give attorneys: they DO police themselves. They report each other, and they sue each other for malpractice. I’m waiting for the snide comment about that after you’ve stated that “the medical profession must police itself.” Rather than give the legal profession credit for what you say is right for the medical profession, I’m sure there’s some kind of “shark” comment coming.


  31. - Skeeter - Tuesday, Aug 29, 06 @ 7:58 am:

    NW,

    Your comment show perfectly why we have problems with the tort system.

    Pain and suffering is to compensate for pain and suffering. It have absolutely nothing to do with dissuading conduct or punishing it.

    Punitives are to punish.

    * * * *

    Snidely,

    Your comments also show ignorance of the tort system.

    If the evidence shows that Stumpy needs a home with special accommodations, that is included in economic damages. There is no cap.

    Lose the ability to attend school and get out of the digger job? Covered, if it could be proven.

    However, if he doesn’t need a home for his injuries and there is no diminuation in income to prevent that, why should he get it from the doctor?

    The tort system is meant to compensate.

    Unless punitive damages are pleaded and proven, it has nothing to do with punishing conduct.

    Too many don’t understand the difference which is why you get some insane verdicts.


  32. - Angie - Tuesday, Aug 29, 06 @ 11:44 pm:

    Lawyers, insurers AND doctors. All of the above can be greedy, as can people who go around looking for a lawsuit. Balance things all the way around so there’s less incentive for anyone to seriously abuse the system. Caps sound like a reasonable idea, but only if they’re applied all the way across the board, affecting many different groups. You never want the system so out of whack and grossly benefitting one group over another, because it just makes an absolute mockery out of the justice system…which already needs serious reform…starting with the insanity of requiring 3 years of law school at ridiculous tuition prices when no one knows what the heck they’re doing that’s of any serious use as 3L’s in the first place.


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