The Right’s Next Target? The scourge of American democracy, the judiciary.

Posted on October 25, 2011 by ashot

Maybe someone linked to this over the weekend, but the NY Times had an interesting article on the newest target of the Right. Tired of attacking Obama, it looks like the Republical Presidential field has move to attacking the judiciary. The criticisms seem pretty standard, with the courts, the 9th Circuit (think California) in particular, being called activist, elite, rogue and radical. What seems to be different are the “solutions” being offered up by the candidates.

Perry has suggested term limits and allowing Congress to overrule the SCOTUS with a 2/3 majority. Gingrich recently told voters that judicial supremecy is “an affront to the American system of self-government.” Bachman said she will fight back against the courts and Santorum has said he would sign a bill to eliminate the 9th Circuit. Gingrich seems to want to be slightly more subtle in dealing with the 9th Circuit by eliminating their clerks and having them meet in the dark. The idea of limiting the types of cases they can hear has also been floated out there with same sex marriage sure to end up on the excluded list. According to the article, the suggestions of term limits and reforming the 9th Circuit have been floated around in the past, but this all seems new to me.

The article does lay out the Constitutional provisions which give Congress some say over the courts and I don’t have enough time right now to get into that, but suffice to say Congress does have some tools they can use to…errr..send messages to the courts. One thing they can’t do is cut judges’ salaries which is why you end up with Gingrich’s suggestions which pretty clearly undermines the intent behind prohibiting Congress from cutting the salary of judges.

Briefly, my thought is that I hate this and it’s extremely short sighted. I’ll be back later, but I have a box of documents to sort through. Boooo.

Filed under: Supreme Court, Tea Party | 5 Comments »

Tort Reform Shmort Reform

Posted on October 13, 2011 by ashot

One of the problems in discussing tort reform is that there seems to be a lack of agreement on what we are trying to accomplish. Evaluating the success, or lack thereof, of tort reform varies depending on whether you think the goal is to lower malpractice premiums for physicians (not very good at it), stop frivolous lawsuits (OK at it), lower the cost of health care (not very good at it), prevent outrageous verdicts (good at it but other reform could do this too), line the pockets of insurance companies (pretty good at it), promote justice (bad at it) or all of the above. The evaluation process is further complicated by the many variables that cause health care costs and insurance rates to increase and the near impossibility of isolating the role tort reform and law suits play in such trends. Overall, I think tort reform is red herring…well, unless you’re a medical practice attorney (plaintiff or defendant) then it’s a big deal.

For clarification, I am simply going to discuss tort reform as it applies to medical malpractice claims. There are two reasons for that, one is because I can speak knowledgeably about the topic and the second is that it is the sort of tort reform that is discussed when addressing health care reform. Maybe we can goad Quarterback into posting on class action reform at some point in the future (I think that would be worthwhile). I am also going to focus mostly on Michigan because I have personal experience with tort reform in Michigan and because they actually have adopted pretty comprehensive tort reform measures that have been in place since 1986.

Frivolous Lawsuits

Most attorneys can tell a story or two about dealing with a frivolous case and preventing or deterring them is something that should be pursued. Even if the case is quickly dismissed it will cost a party a couple grand in attorney fees (wait, why am I complaining about this?). In Michigan, one of the ways frivolous medical malpractice suits are deterred is through the requirement that plaintiffs file an Affidavit of Merit (“AOM”) signed by a qualified physician with their complaint. The AOM must contain specific things, but basically it’s a physician saying the claim is not frivolous. I’m not sure this is quite the deterrent tort reform proponents think it is. I knew of at least two law firms that had physicians who actually had offices at law firms. That isn’t to say it doesn’t work at all. Statistics show the number of medical malpractice claims filed have declined over the last 10-20 years. I just think the drop in malpractice suits is due to damage caps, which I’ll get into later, rather than fewer frivolous claims.

Another measure aimed at deterring frivolous claims is a loser pays system. I’m dubious of such a system since I think it promotes settlement more than anything and therefore does not particularly promote justice, a criticism that can be aimed at most tort reform measures. Michigan has a tame version of the loser pays system enforced through a requirement that all cases go to “Case Evaluation”, a form of mediation. Case Evaluation involves each party writing a summary of their case and making a presentation to a 3 member panel of attorneys. The panel values the case and each party can accept or reject the panel’s recommendation. Basically, if you reject the recommendation and it ends up a better deal than an eventual jury verdict, you are on the hook for the other side’s legal fees (possibly in addition to whatever the verdict is). Again, I think this mostly promotes settlement which isn’t inherently bad, but isn’t inherently good either.

Damage Caps

While ostensibly aimed at preventing runaway jury verdicts like the infamous $2.7 million verdict (later reduced to $480,000) in the McDonalds coffee case, damage caps are probably best at reducing the number of lawsuits in general. The reason for this is simple; lawyers, unlike more altruistic professional like doctors (I kid), like to make money. In Michigan, punitive damages are not allowed (goodbye $2.7 million) and non-economic (read pain and suffering) damages are limited at two different levels. The first level is currently $411,300 and the second is $734,500. Basically the first level applies unless you have a brain or spinal injury or lose a limb. To show how this deters filing a case, take a 70 year-old retiree who was relatively healthy, goes to the hospital and dies during surgery. Since she wasn’t working, her damages are basically limited to the lower cap amount plus medical bills. So the most an attorney could get is one-third of $411,300 minus expenses. However, most cases aren’t open and shut so the settlement is likely to be much lower. Add the expenses of an expert witness, depositions etc and that cases take 2 years or so to get to trial and it’s easy to see why an attorney would turn down a perfectly legitimate case (this is where a loser pays system may actually increase litigation expenses since an attorney may take on that case if the other side is scared of having to pay attorney fees). Perversely, the 70 year-old’s case is worth a lot more if she ends up alive and brain damaged, paralyzed or missing a limb. It’s pretty easy to see that while this saves money it doesn’t promote justice which is why some states have found caps to be unconstitutional (see Georgia and Illinois).

Health Care Costs

Most recently, tort reform has been talked about in the context of reducing health care costs. The CBO said the money saved would be a drop in the bucket and I tend to think that is true, particularly with respect to decreasing malpractice premiums and the amount paid out in settlements and verdicts. However, that doesn’t really address the cost of defensive medicine which is nearly impossible to measure. To be blunt, I think defensive medicine is largely nonsense. First, the cost of defensive medicine is almost always derived from polls or surveys of physicians who would most benefit from tort reform so color me skeptical. Second, when a doctor submits a bill for a service to Medicare, Medicaid or a private payer they essentially swear the services were medically necessary. So if a test was performed simply to avoid a lawsuit and it was not medically indicated they are committing fraud. Lastly, I think the motivation of being paid for the test is stronger motivation than the less likely scenario of being sued as a result of not performing a particular test.

Are You Done Yet?

This is already too long so a few more thoughts. First, after Texas passed tort reform, doctors rushed to practice there (wait, I thought they were altruistic) which led to more money being spent on health care, not less. Second, there are Constitutional concerns with Congress telling juries all over the country how much cases are worth. Since, tort reform is generally supported by Republicans and opposed by trial lawyer loving Democrats you get a lovely situation where small government conservatives support this big government intrusion and big government liberals (like me) get to point that fact out (yes, I realize this makes me a hypocrite, too). Lastly, there are other measure out there like joint and several liability and the collateral source rule among others, but they involve more legalese and would make this post even longer. I am happy to discuss those in another post or in the comments.

Filed under: health insurance, healthcare, tort reform | 13 Comments »

Taking it to the SCOTUS

Posted on September 29, 2011 by ashot

It looks like the SCOTUS will be weighing in on the Constitutionality of the ACA sooner rather than later. The Obama administration could have tried to delay the issue but they went the other route
. The administration has said they are confident they will win but there has to be a political reason they are choosing to have the fight during the election season rather than attempt to delay a decision until after next November.

On one hand, it makes sense for Obama to stand up for what is widely seen as his signature piece of legislation. If he tried to delay a decision, it seems likely his opponents would point to it as weakness and liberals may see it as yet another sign of poor leadership. On the other hand, the law is unpopular among liberals and conservatives so I am not sure appearing to strongly support the bill does Obama a whole lot of good.

Is it possible that Obama may actually be better off if the SCOTUS finds the mandate unconstitutional and the ACA begins to unravel? That may motivate the liberal base a bit because a Republican plan signed by a Republican President would scare the bejesus out of them. Such a ruling may also force Obama to come out with a plan that includes a public option.

I’m headed for a babymoon with my wife and am swamped at work the rest of the day. Then I have a firm retreat Monday and Tuesday, so I may be scarce until later next week. I promise to put up a tort reform post next week though.

Filed under: healthcare, law, Supreme Court | 7 Comments »

Views on the Republican Debate

Posted on September 23, 2011 by ashot

Based on the comments here and the articles I’ve perused on the web, it seems like Romney was the clear winner last night.

According to Dan Balz and Perry Bacon Jr., Perry and Obama were the primary targets in last night’s debate.

Clizza saw last night as a clear win for Romney and a loss for Perry.

And in one of my favorite columns after any debate, the fact checker weighs in on the telling of fibs from last night.

Last but not least, we’ll give a Republican viewpoint with Jennifer Rubin saw Perry fade and Santorum get a big win.

Meanwhile, I liked okie’s point about what a contrast of Romney’s 0% capital gains tax with the Obama’s proposal. Does Romney explain somewhere how he proposes to pay for that tax cut?

Sorry that these are all from the WaPo, but work is too crazy for me to pull from too many sources and I’m trying to contribute to this great blog.

Filed under: Debates, Tea Party | 15 Comments »

Medical Costs and Transparency – from WSJ

Posted on September 20, 2011 by ashot

Thanks to the hard work of those who founded this blog and for those who insisted on inviting me. I have only scorn for those who failed to do either of the above, particularly those who failed to do the later.

There was a commentary in today’s Wall Street Journal discussing improving transparency in our health care system by publicly releasing data contained in insurance claims which is required under the ACA. The title of the article is More Transparency, Better Health Care but it is behind a pay wall (although I managed to get the full text as part of a “free pass”).

The commentary is quiet short and superficial, but it had a few interesting highlights that may be worthy of additional thought and discussion:

Rates of preventable diseases, hospitalizations, complications and readmissions vary greatly among health-care providers.

This sort of addresses something NoVa raised at the PL a while ago (although not exactly the same) in that there are often large regional variations in treatment regimens that lead to disparate spending and outcomes. Some of this is understandable as population differences will impact treatment differences, but it seems to me that there should be fewer differences than presently exist. The question, of course, is how do decrease those differences. I wonder what role competition plays here. Competition between health care providers may decrease cooperation and sharing knowledge but should also spur innovation (although under the present system there is less incentive to prevent disease or prevent readmission).

Too often, unnecessary, redundant and needlessly expensive tests and treatments are prescribed.

Well, now we’re just stating the obvious in a very unhelpful way. The reasons these treatments are prescribed vary widely.

Controlling costs without compromising quality will require multiple scalpels rather than one blunt instrument. Public reporting of performances measure could provide those scalpels by allowing the public to compare doctors and hospitals based on cost and clinical results.

Now we get to the crux of the commentary and to an issue raised by other PL contributors. Would a more informed public make better decisions with their health care dollars? The authors answer in the affirmative, but fail to provide any real explanation as to how or how much. I think it would be hard to argue that making the data available is a bad thing (assuming the data is accurate) but I am skeptical that it would make too much of a difference. We often don’t have time to comparison shop and even if we are afforded the time to do so, would we take the time to do so and would the time we spend shopping really be time well spent? Perhaps more importantly, as long as we still have the same health insurance system, won’t people just choose the person with the best “stats” regardless of costs? This seem particularly true when we consider that most health care dollars are spent at the end of life and often those treatment decisions are made by spouses and children who are both emotionally invested and, with respect to children, not impacted financially (inheritance aside) by how much a given treatment decision costs.

I wish the article had been more informative, but I do think it is good starting point for a conversation.

Filed under: Uncategorized | 12 Comments »

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