Wednesday, April 09, 2003

Brian King emails:
The comic strip Rex Morgan M.D., which I never read [Ed.: here's some background on the venerable strip], is launching onto a tort reform comment regarding med. mal. I don't know if your paper carries it but in the first frame one character asks another what is wrong and the second replies that the office's med mal insurance premium just went up $40K. The first character asks if the doc has been sued by someone and the second character says "never . . . in all our years of practice we've never had a claim." End of today's strip. I'll be interested in tomorrows and the next days'.

The strip is poised to make a great point against med mal tort reform. Why is it that premiums skyrocket (assuming they are) for docs who have a clean claim history? Is this a lawyer/plaintiff problem that needs remedying? It certainly seems that the doc is an innocent victim but if no one has sued him it seems to me the problem is not with frivolous claims either. Seems to me its an insurance industry in need of reform.

I am not qualified to address the ins and outs of actuarial practice or how med mal insurers can or should be setting premiums. But it is my understanding that many (most? all?) med mal insurers do not take a doc's claims experience into account in setting that docs premiums. If that is true, it is a travesty. Especially when you read the stats from various states (Florida comes to mind although I don't know where I read this) that a huge percentage of the money paid out over time (my recollection is approaching or exceeding 50%) to plaintiffs come from malpractice committed by less than 5% of the docs. Why don't insurers do a better job of adjusting the premium based on a docs own claims history? I, with an accident free driving record over the past 5 years, would certainly not be pleased to pay the same auto insurance premium as someone who has had three DUI convictions over the past 5 years. Med mal insurers are not doing a very good job of weeding out the bad docs by making a direct correlation between premiums charged in the future for a given doc and that doc's claims experience. If they did so, we'd have fewer bad docs practicing medicine, fewer injured plaintiffs and lower premiums for competent docs. Why is this not being discussed more often?

Tort reform in the funny papers? Why, that's, uh, appropriate! By the way, you can see the strip in real time here.

Gary O'Connor, who blogs at Statutory Construction Zone, emails with a link to Blackstone's Commentaries on the subject of tort limitations [to read the original from the link click Edit, Find, enter 379 and enter; the full quote runs from p. 379 to p. 381]. Here's some background on Blackstone, for the uninitiated.

I have taken the liberty of correcting the archaic spelling from the original to ease readability:

The impartial administration of justice, which secures both our persons and our properties, is the great end of civil society. But if that be entirely entrusted to the magistracy, a select body of men, and those generally selected by the prince or such as enjoy the highest offices in the state, their decisions, in spite of their own natural integrity, will have frequently an involuntary bias towards those of their own rank and dignity: it is not to be expected from human nature, that the few should be
always attentive to the interests and good of the many.


Here therefore a competent number of sensible and upright jurymen, chosen by lot from among those of the middle rank, will be found the best investigators of truth, and the surest guardians of public justice. For the most powerful individual in the state will be cautious of committing any flagrant invasion of another's right, when he knows that the fact of his oppression must be examined and decided by twelve indifferent men, not appointed till the hour of trial; and that, when once that fact is ascertained, the law must of course redress it. This therefore preserves in the hands of the people that share which they ought to have in the administration of public justice, and prevents the encroachments of the more powerful and wealthy citizens. Every new tribunal, erected for the decision of facts, without the intervention of a jury, (whether composed of justices of the peace, commissioners of the revenue, judges of a court of conscience, or any other standing magistrates) is a step towards establishing aristocracy, the most oppressive of absolute governments.

As Gary notes, "This isn't some 20th/21st century liberal talking, it's an 18th century conservative!" Which begs the question of why we are revisiting this issue over and over, every 10 years or so. Perhaps we're seeing the latest "step towards establishing aristocracy"? Thanks for the [always] timely email, Gary.

On April 14, the Daily Rant is going to be hosting Pet Blogging Day as kind of a break from all the war coverage. It's meant to lighten things up a bit. Although, with the war news as good as it seems to be right now, we might not need any more lightening up.
Big Insurance [HMO subset] takes a hit. The U.S. Supreme Court has said that a 1974 federal law does not apply to Kentucky's HMO statute, and that any doctor that agrees to the terms of the HMO contract must be accepted as an HMO doc, per the state law.

Makes sense to me. While the HMOs say that there will be cost and quality implications affecting the level of care they can provide if they can't be selective, I don't see how, if the docs are agreeing to the HMO contract.

Is Tommy Lee at fault for the drowning of a little boy in his pool at Tommy's son's birthday party? A very interesting torts question. Each kid was supposed to have their own adult supervision. The decedent child was brought by a caretaker, who left the party and left the child in the care of another caretaker. As far as that goes, I don't see it as Tommy's fault; it's the caretaker who has now disappeared or the substitute caretaker who should be held to account.

Where Tommy may be in some trouble is over the apparent fact that there was only one life preserver, which his own son was wearing. My guess is that the jury will assess some percentage of fault for (1) making the pool available to the kids, and (2) not having enough flotation jackets for all the anticipated child swimmers.

UPDATE: Here's an interview with Tommy from March 2002. This article alleges that it was Tommy's caretaker who was not watching the deceased child. Uh oh for Tommy, if that's the case.

But, we should all feel better, since Tommy has taken strong steps to prevent it happening again: ""I had a very good friend of mine come by and set up a cleansing. We drained the pool; we blessed the new waters and my sons were part of it."


We're finally going to look for Scott Speicher. The odds are not good, but at least we'll know.

Tuesday, April 08, 2003

The U.S. Supreme Court has overturned a $145 million punitive damage verdict. Seems State Farm thought it was too much, and the Supremes agreed. Hre's a news release from ATLA. Also, for those interested, here's the ATLA amicus brief. Here's the text of the opinion. How Appealing has a detailed write-up of the case -- just scroll down to item 2. There are links to other newspaper articles about the decision here.

In the strange bedfellows department, Justices Scalia and Thomas dissent from the majority, arguing that there is no constitutional authority for limiting punitive damages. I'm with 'em on this one.

Has it been five days since I've blogged? Can't be. Jeez, I'm working too hard.