'Health courts' cost, it's just another bureaucracy'

Here's the second part in our piece from resident-provoceteur, Matt. Yesterday he told us why he believes in the American jury system and not health courts. He said he's used to being called a shark, so we obliged with the photo at right.

Back to health courts' cost, it's just another bureaucracy, and we've just added more state employees for a function that no one is able to show our current judges are doing a consistently poor job of handling.  Even the claim that they are necessary to establish standards of care is false - there is literally nothing stopping physicians from doing that now.  They can go to their insurer.

I've often seen Kevin's claim that 40% of claims are unfounded, according to Studdert.  Well of course that's true - they are CLAIMS.  The key is how does the system do when sorting out claims, and on that point, the current system does very well.

As to the counter, from reading in the medical blogosphere, I think that many physicians simply don't like adversarial settings.  That's true of most of us, even most lawyers, but I think physicians in particular are acutely sensitive to it.  Maybe it's the fact that they (like preachers) aren't used to being questioned and very much enjoy being captain of the ship.  I know many don't feel that way, but in general polls show the public very much respects and admires them, and juries certainly defer to them.  But it's the process of reaching the truth in our justice system that they don't like.

So I think they would like to go to a no-fault system.  The problem is, they really don't know how to do this, and the insurers aren't for it.  The other issue is they really, like everyone, don't like it when their costs go up.  Insurance went up in the first part of this decade, dramatically, as bond rates fell and the stock market went down.  Coupled with the dramatic cost increase of reinsurance thanks to hurricanes and 9/11, there was a significant correction from the boom of the 90s.  It has happened before and it will happen again.  And, of course, higher verdicts had an effect as well - but remember, verdicts primarily reflect future and past medical bills.  And medical costs increase at a rate faster than just about anything else the public utilizes, except oil lately.

Couple that with declining reimbursements and a truly screwed up compensation system, and physicians were bound to lash out.  And lawyers make a convenient target.  The tort reform lobby has effective PR, and some of our brethren certainly reflect poorly on us.  Plus, as there is nearly always an "other side" to every thing we do, we're always pissing someone off.  So we make an easy scapegoat.

But making us the scapegoat doesn't change the fundamental problems with medicine. For malpractice, even given the worst assumptions about it, is a tiny percentage of its ills.  The other problems require far more thought and time to fix, and indeed in some ways seem insurmountable.  How do you provide for the largest elderly population in US history?  A group with accumulated savings unlikely to last as long as they do?  What is going to happen when foreign nations don't so easily fund our adventures, and politicians start looking around to cut costs?  Who better than doctors, who are already pretty well off, at least as compared to the rest of the population.

There's a train coming down the physicians' track, but demonizing lawyers ain't slowing it down, and putting damage caps and whatever other window dressing the tort reform lobby tries to throw up isn't either.  Physicians, the people with the most to gain and the most to lose, MUST stop being diverted with this issue and focus on how we are going to fund and provide healthcare over the next couple of decades.

Thanks for the retort, Matt. Someone has to have something to say in response, no?

Comments

[DocJohnny]

1)"The key is how does the system do when sorting out claims, and on that point, the current system does very well."

Only if you are a lawyer. Even a frivolous claim ties up time and money better spent elsewhere. Only attorneys benefit from claims, and only an attorney could think the current system works "very well".

2) "But making us the scapegoat doesn't change the fundamental problems with medicine."
-This entire argument is a straw man argument. No one is claiming that tort reform will "fix" the entire health care system. Tort reform will fix the problem of frivolous torts and rising malpractice insurance rates.

3) "Physicians, the people with the most to gain and the most to lose, MUST stop being diverted with this issue and focus on how we are going to fund and provide healthcare over the next couple of decades."

-Again, separate problems. The issue of tort reform is only a part of the impending health care crisis. But it is in no way a diversion, it is definitely part of the problem.

[Matt]

"Even a frivolous claim ties up time and money better spent elsewhere."

Where would it be spent? On more insurer overhead?

"Only attorneys benefit from claims, and only an attorney could think the current system works "very well"."

David Studdert is an attorney?

" Tort reform will fix the problem of frivolous torts and rising malpractice insurance rates."

No it won't. It hasn't done that in any state it's been tried. Malpractice rates rise because the cost of medical care rises. The bulk of all awards are for past and future medical bills. That won't change. All that will change is that it will be harder for some of the legitimately injured to find an attorney, and thus their bills will become the responsibility of the taxpayer.

"But it is in no way a diversion, it is definitely part of the problem."

The problem of insurer profits? Maybe. The problem of healthcare delivery and cost? Not really. At its most generous, it's less than 10% of the cost of healthcare - and that's assuming every case is frivolous and no one should carry insurance.